■^^2--=::^= 
-^-^4?:^:^ 


'-'a. 


A. ).  GUNMISON. 


'&\ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


^3 


W(> 


112  Washington  St.,  Boston, 
July  1,  1857. 


LAW   BOOKS, 

RECENTLY  PUBLISHED   BY 

LITTLE,    BROWN    AND    COMPANY, 

LAW  AND  FOREIGN  BOOKSELLERS. 


tt^  Orders  by  letter  for  any  of  these  publications  will  be  promptly  attended  to,  and 
boxind  volumes  sent  by  mail  to  any  post-office  in  the  United  States* 


We  invite  the  attention  of  the  profession  to  our  extensive  and  continually  increas- 
ing stock  of  Law  Books,  both  Foreign  and  Domestic,  embracing  every  branch  and 
department  of  Jurisprudence,  including  many  rare  and  valuable  French  worksi 
Catalogues  may  be  had  upon  appUcation. 


DIGEST  OF  ENGLISH  REPORTS.- 

A  DIGEST  OF  THE  DECISIONS  OF  THE  COURTS  OF 
ENGLAND,  contained  in  the  English  Law  and  Equity  Reports, 
from  the  first  volume  to  the  thirty-first  inclusive.  By  Chauncey 
Smith,  Esq.     8vo.     Price,  $5.50. 

This  Digest  contains  an  abstract  of  about  forty-five  hundred  cases  decided 
in  the  several  Chancery,  Common  Law,  Criminal,  Admiralty,  and  Eccle- 
siastical Courts,  and  a  complete  synopsis  of  the  decisions  of  the  EngUsh 
courts  for  a  period  of  five  years. 

It  has  beeu  carefully  prepared,  with  particular  reference  to  the  conven- 
ience of  the  profession  in  this  country.  Every  practitioner  has  felt,  in  the 
use  of  the  Enghsh  digests,  the  embarrassments  to  which  the  difference  in 
the  practice  of  the  two  countries  subjects  the  American  lawyer  in  the  use 
of  a  book  prepared  expressly  for  the  profession  in  England. 

A  digest  is  a  labor-saving  device  for  economizing  the  time  of  a  lawj-er ; 
and  any  expedient  which  tends  to  promote  that  object  adds  to  t^^  value  of 
the  work.  The  Law  and  Equity  Digest  contains  one  feature  of  great 
utiHty :  the  abstract  of  each  case  has,  at  its  commencement,^  a  caption  in 
Italics,  indicating  the  point  decided,  and  enabling  the  examiner  to  deter- 
mine at  a  glance  if  the  case  is  one  which  he  desires  to  consult. 

The  table  of  cases  is  also  more  full  and  complete  than  any  other  which 
•  has  been  pubhshed  in  this  country.     It  contains  a  reference  not  only  to  the 
Law  and  Equity  Reports,  but  to  all  the  diff'erent  series  published  m  Eng- 
land or  reprinted  in  this  country,  and  enables  the  lawyer  to  find  any  case 

1 


cited  from  any  of  these.  By  this  means,  the  Digest  is  made  an  index  to  all 
the  English  Reports,  and  may  be  used  with  greater  convenience  than  any 
other  digest  of  English  cases  published  in  this  country. 

"  It  well  deser\'es  to  find  a  place  upon  the  shelves  of  every  lawyer,  as  a  neat  state- 
ment of  principles,  and  a  reliable  reference  to  adjudged  cases.  To  those  who  have 
purchased  or  may  procure  the  Reports  digested,  it  is  an  mdispensable  adjunct  to  a. 
series  which  cannot  otherwise  be  complete.  To  those  conversant  with  the  laws  ot 
Ent'land  the  digest  before  us  will  serve  to  refresh  the  memory.  To  those  who  are  not 
familiar  with  the  cases  decided  by  the  courts  of  the  mother  country,  it  will  serve  as  a 
source  of  valuable  information  given  in  a  condensed  form.  To  all  it  will  prove  an 
easy  and  speedy  mode  of  acquiring  legal  information,  which  can  be  enlarged  upon  as 
necessity  requires,  by  examining  the  cases  referred  to  in  the  digest."  — -LommWe 
Journal. 

"  This  necessary  companion  to  the  English  Law  and  Equity  Reports  is  a  most  cred- 
itable performance.  The  cases  are  very  fully  set  out ;  the  analytical  arrangement  is 
excellent.     The  book  will  greatly  facilitate  the  work  of  research. 

"  The  table  is  a  most  important  addition  to  the  work,  and  the  references  in  each 
case  is  not  only  to  the  volume  of  the  Law  and  Equity  Reports  where  it  is  to  be  found, 
but  also  to  the  various  English  publications:  this  last  more  valuable  to  us  than  to  the 
profession  in  the  United  States.     There  is  also  a  reference  to  the  page  of  the  Digest. 

"  Every  one  who  possesses  the  Law  and  Equity  Reports  will  of  course  procure  a 
copy  of  this  Digest;  but  apart  from  its  worth  in  connection  with  the  series  to  which 
it  belongs,  it  possesses  sufficient  intrinsic  value  to  commend  it  to  the  favorable  notice 
of  the  profession  here  and  elsewhere."  —  Uj^er  Canada  Law  Journal. 

"  From  our  examination  of  this  Digest,  we  believe  it  to  be  an  excellent  one,  and 
that  it  will  compare  well  with  any  of  its  contemporaries."  —  Xato  Reporter. 


ENGLISH  LAW  AND  EQUITY  REPORTS. 

R»PUBLICATION  OF  THE  ENGLISH  REPORTS  IN  FULL. 

CONTAINING  THE  REPORTS  OF  ALL  THE  CASES  be- 
fore the  House  of  Lords,  Privy  Council,  the  Lord  Chancellor,  the 
High  Court  of  Appeal  in  Chancery,  all  the  Common  Law  Courts, 
the  Court  of  Criminal  Appeal,  and  the  Admiralty  and  Ecclesiasti- 
cal Courts. 

The  cheapest,  most  complete  and  reliable  series  of  English  Reports 
issued  in  this  country. 

Vols.  I.  to  XXXVU.  now  ready  for  delivery,  at  $2  per  volume. 

"  We  have  so  repeatedly  expressed  the  hi^h  opinion  which,  in  common  with  the 
mass  of  the  legal  profession,  we  entertain  of  this  series  of  reports,  that  it  would  be 
entirely  superfluous  to  suy  any  thing  more  on  the  subject  at  present.  No  lawyer  who 
endeavors  to  keep  pace  with  the  science  of  the  common  law  and  equity  jurispru- 
dence can  succeed  without  the  regular  study  of  the  English  as  well  as  the  American 
reports."  —  A'eft'  York  Commercial  Advertiser. 

"  We  cannot  but  regard  this  as  in  every  light  a-  most  important  and  valuable  work 
to  the  lepal  profession,  and  eminently  worthy  of  their  patronage;  while  the  fact  that  a 
publication  so  fjxtensive,  and  rc(iuiniig  so  great  an  outlay  of  capital,  can  be  sustained 
m  this  country,  gives  a  gratifying  evidence  that  the  liar  are,  more  than  in  former 
years,  disposca  to  the  study  of  the  science  of  which  they  are  the  votaries."  —  St. 
Louia  Republican. 


UNITED    STATES    SUPREME    COURT   DECISIONS. 

JUDGE    CIJRTIS'S  EDITION. 

REPORTS  OF  DECISIONS  IN  THE  SUPREME  COURT  OF 
THE  UNITED  STATES.  "With  Notes  and  a  Digest.  By  B. 
R.  Curtis,  one  of  the  Associate  Justices  of  the  Court.  In  22 
vols.  8vo,  including  a  Digest. 

These  Reports  comprise  the  Cases  reported  by  Dallas,  4  vols. ;  Cranch,  9 
vols.;  Wheaton,  12  vols.;  Peters,  16  vols.;  Howard,  17  vols.;  in  all,  58 
vols.  Thev  comprise  the  entire  period  from  the  origin  of  the  Court  to  the 
end  of  the  seventeenth  volume  of  Howard. 

The  Catalogue-price  of  the  Old  Series  is  S222.  Judge  Curtis's  Edition 
is  offered  at  the  low  price  of  $3  a  volume,  or  $66  for  the  whole,  including 
the  Digest. 

The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  been  printed  by  the 
authorized  reporters,  after  correcting  such  errors  of  the  press  or  of  citation  as  a  care- 
ful examination  of  the  text  has  disclosed.  I  have  endeavored  to  give,  in  the  head- 
notes,  the  substance  of  each  decision.  Thej'  are  designed  to  show  the  points  decided 
by  the  Court,  not  the  dicta  or  reasonings  of  the  Judges.  To  each  case  is  appended  a 
note  referring  to  all  subsequent  decisions  in  which  the  case  in  the  text  has  been  men- 
tioned. It  will  thus  be  easy  to  ascertain  whether  a  decision  has  been  overruled, 
doubted,  qualified,  explained,  or  affirmed ;  and  to  see  what  other  applications  have 
been  made  of  the  same  or  analogous  principles.  — Extract  from  the  Preface. 

"  A  work  which  is  unquestionably  the  most  useful  and  valuable  addition  that  has 
been  made  to  the  legal  literature  of  this  country  for  many  years,  and  which  can  never 
be  superseded.  This  appreciation  of  its  merits  is  concun-ed  in  by  all  the  Justices  of 
the  Supreme  Court,  by  the  Attorney-General,  and  by  all  the  eminent  members  of  the 
bar  who  have  expressed  any  opinion  on  the  subject." — New  Yorh  Commercial  Adr 
vertiser. 

"  The  complete  work  is  a  monument  of  skilful  editorial  labor  and  judicious  pub- 
lishing enterprise.  No  greater  service  has  at  one  time  been  rendered  to  the  legal  pro- 
fession in  this  country,  than  by  the  issuing  of  this  series  of  the  decisions  of  our  highest 
Court."  —  Neil)  York  Daily  Times. 

"  It  is  no  more  than  justice  to  say,  that  the  eminent  character  of  the  editorship,  the 
nature  of  the  matter,  and  the  elegance  of  the  printing,  combine  to  make  it  one  of  the 
most  valuable  legal  works  ever  issued."  —  Boston  Post. 

"  As  we  have  done  before,  we  commend  this  republication  to  the  patronage  of  the 
bar.  No  lawyer  could  make  an  addition  of  greater  and  more  permanent  value  to  his 
library ;  as  certainly  none  could  be  made  in  which  so  large  an  amount  of  matter  could 
be  obtained  at  so  small  a  price."  —  St.  Louis  Republican. 

"  It  is  almost  indispensable,  that  every  lawyer's  library,  which  aspires  to  any  thing 
approaching  completeness,  should  contain  the'  Reports  of  the  decisions  of  the  national 
tribunal,  which,  before  this  edition,  was  a  severe  tax.  The  work  is  done  with  neat- 
ness, and  accuracv,  and  taste.  The  Digest  is  all  that  could  be  desired,  and  much 
needed,  and  with  the  Notes  of  the  Edition,  will  prove  of  great  convenience  to  the  pro- 
fession." —  Judge  Eedjield. 


CURTIS'S    DIGEST 

OF    THE 

UNITED  STATES  SUPREME  COURT  DECISIONS. 

A   DIGEST   OF    THE    DECISIONS   OF    THE    SUPREME 
COURT  OF  THE  UNITED  STATES,  from  the  origin  of  the 


Court  to  the  close  of  the  December  Term,  1854.    By  B.  R.  Cur- 
tis, one  of  the  Associate  Justices  of  the  Court.    1  vol.  8yo.    Price, 

$5.50. 

This  Digest  embraces  all  the  published  decisions  of  the  Supreme  Court 
down  to  the  present  time,  including  seventeenth  Howard.  It  is  so  arranged 
that  it  may  be  used  in  connection  with  the  Reports  of  Messrs.  Dallas, 
Cranch,  Wheaton,  Peters,  and  Howard,  or  with  the  twenty-one  volumes  of 
decisions  as  published  by  Mr.  Justice  Curtis  (of  which  it  forms  the  twenty- 
second  volume). 

It  contains  a  table  of  all  Acts  of  Congress  construed  or  referred  to  by  the 
Court  in  their  opinions,  arranged  in  chronological  order ;  with  references  to 
the  cases,  and  an  appendix  of  practical  directions  for  prosecuting  writs  of 
error  and  appeals  to  the  Supreme  Court  of  the  United  States,  with  the 
necessary  forms  ;  and  also  a  table  of  the  cases  decided,  and  another  of  the 
cases  cited  by  the  Court  in  their  opinions. 


Cushing's  Reports,  Vol.  X. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Luther  S.  Cushing.    Vol.  X.,  8vo.     $5.00. 


Gray's  Reports,  Vol.  III. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.   By  Horace  Gray,  Jr.    Vol.  III.,  8vo.    $5.00. 


Cnrtis's  Circuit  Court  Reports,  Vol.  II. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  CIRCUIT  COURT  OF  THE  UNITED  STATES  FOR 
THE  FIRST  CIRCUIT.  By  Hon.  B.  R.  Curtis,  Judge  of  the 
U.  S.  Supreme  Court.     Vol.  II.,  8vo.     $5.50. 


Farsous  on  Mercantile  Law. 

THE  ELEMENTS  OF  MERCANTILE  LAW.  By  Theophi- 
Lus  Parsons,  LL.  D.,  Dane  Professor  of  Law  in  Harvard  Uni- 
versity.    1  vol.  8vo.    $5.50. 

"  This  volumo  should  be  rend  by  every  commercial  lawver,  if  for  no  other  purpose 
thnn  to  refresh  the  memory  upon  topics'  which  miiy  have  teen  once  familiar. 
"  A  lawyer  in  practice  is  often  called  upon  to  investigate  particular  questions,  but 


he  is  not  called  in  a  lifetime  over  the  whole  field  of  commercial  law.  He  needs  occa- 
sionally to  read  a  text-book  to  refresh  his  memory  upon  the  subject  generally,  to  pre- 
pare himself  for  the  investigation  of  particular  questions.  This  volume  appears  to  be 
just  the  work  for  this  purpose. 

"  We  think  this  volume  will  also  be  useful  and  acceptable  to  intelligent  merchants. 
Neither  this  work,  or  any  other,  will  point  out  to  a  merchant  the  way  out  of  difficulty 
when  he  is  once  involved  in  it,  but  it  will  give  him  a  clearer  idea  of  his  riglits  and 
obligations,  and  thus  save  him  from  the  difficulties  into  which  he  might  otherwise 
fall."  —  Boston  Post. 

"i'lt  is  no  small  praise  to  sav  that  the  work  before  us  justifies  the  expectation  which 
the  position  of  its  author  inevitablr  raises.  It  is  simple,  and  yet  profound;  extensive 
in  its  scope,  and  j-et  eminentlv  terse  and  condensed; 'it  is  an  excellent  guide  to  the 
student,  and  no  less  capable  of  being  made  useful  to  the  learned  practitioner."  —  New 
York  Evening  Post. 

"  We  cannot  speak  too  stronsilv  of  the  value  to  mercantile  men  of  works  whicWike 
this,  explain  and  illustrate  theVrinciples  upon  which  business  should  be  conduTted. 
This  volume  —  a  good  book  for  the  lawyer—  is  a  capital  book  for  the  merchant.  We 
do  not  think  any  young  man  on  the  threshold  of  business  can  read  this  volume  care- 
fully, and  remem'ber  what  he  reads  —  he  cannot  help  understanding  it  — without 
adding  twenty-five  per  cent,  to  the  value  of  his  services  in  any  commercial  employ- 
ment."—  Hunt's  Merchants''  Magazine. 


Story  on  Contracts. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Wil- 
LiAii  W.  Story,  Esq.  Fourth  Edition.  Revised  and  greatly 
enlarged.     2  vols.  8vo.    $11.00. 

"  The  law  of  contracts  is  the  widest  department  in  the  science  of  jurisprudence,  and 
is  of  the  most  general  application.  The  legal  practitioner  needs  to  consult  it  almost 
constantly,  so  that  the  latest,  the  most  copious  and  best  arranged  digest  of  authorities 
is  always  of  the  greatest  utility  to  him.  This  enlarged  and  practical  treatise  by  Mr. 
Story  is  therefore  certain  to  be  welcomed  by  lawyers  who  are  actively  engaged  in 
professional  business."  ^  iV.  F.  Com.  Advertiser, 


Leading  Criminal  Cases. 

A  SELECTION  OF  LEADING  CASES  IN  CRIMINAL  LAW: 

with  Notes.     By  Edmuxd  Hastings  Bennett,  and   Franklin 
FiSKE  Heard.     Vol.  L,  8vo.     $5.00. 

"  We  do  not  hesitate  to  say  that  this  will  be  found  an  exceedingly  useful  and  con- 
venient work  to  the  student  or  the  practitioner  of  criminal  law,  and  we  trust  it  may 
be  extended."  —  N.  T.  Evening  Post. 

"  The  selected  cases  are  taken  from  both  British  and  American  Reports,  and  the 
editors,  in  preparing  their  notes,  seem  to  have  faithfully  explored  the  whole  field  of 
EngUsh,  Irish,  and  American  adjudication,  and  to  have  embodied  the  result  in  a  clear, 
systematic,  and  condensed  manner.  We  cannot  doubt  that  the  work  will  speedily 
attain  a  high  repute,  and  be,  in  aU  respects,  a  valuable  aid  to  all  concerned  in  the 
administration  of  the  branch  of  the  law  of  which  it  treats."  —  St.  Louis  Republican. 


Walker's  Introduction. 

INTRODUCTION  TO  AMERICAN  LAW ;  Designed  as  a  First 
Book  for  Students,  by  Timothy  Walker,  LL.  D.,  late  Professor 


of  Law  in  the  Cincinnati  College.     Third  Edition,  enlarged  and 
revised.     8vo.     $5.50. 

"  We  take  leave  of  Mr.  Walker  with  gi-ateful  acknowledgments  for  the  pleasure 
with  which  we  have  read  his  work,  and  repeat  our  sense  of  its  value  as  an  accession 
to  our  leo-al  literature.  We  have  found  in  it  much  to  admire  and  very  little  to  qualify 
that  admiration.  Its  systematic  arranp;ement,  its  comprehensiveness,  its  accuracy, 
and  its  clear  simplicity  of  stvle,  will  inevitably  rescue  it  from  the  fate  of  that  crowd 
of  law-books,  whose  '  "dissoluble  fragments  '  the  waves  of  time  are  perpetually  wash- 
m<r  awav.  The  intelligent  student  will  value  it  as  a  clear-sighted  guide  in  the  early 
stages  of  his  toilsome  pilgrimage,  and  the  accomplished  lawyer,  if  he  be  free  from  the 
narrow  prejudices  which  the  profession  sometimes  engenders,  will  not  turn  away  with 
disdain  from  its  unpretending  pages,  for  though  it  does  not  pretend  to  teach  liim  any 
thino-  new,  he  will  esteem  it  for  the  manifestation  of  a  vigorous,  reflective,  and  accora- 
plisl^d  mind,  whicli  he  v.'ill  everywhere  find  in  iU'  —  American  Jurist. 

"  It  would  be  difficult  to  find  seven  hundred  and  fifty  pages  which  give  a  more  just 
and  complete  idea  of  what  law  is,  or  furnish  so  desirable  an  outline,  whether  the 
reader's  object  is  to  obtain  a  general  knowledge  of  the  science,  or  to  prepare  himself 
for  a  full  aiid  thorough  investigation  of  its  departments,  or  merely  to  determine  his 
own  aiititude  for  the  profession  whose  domain  it  covers.  It  is  not  characterized  by 
that  too  sententious  brevity  which  renders  some  elementary  treatises  the  dry  and  re- 
pulsive enumeration  of  stiff  generalizations,  while  it  avoids  that  protracted  discussion 
which  can  only  be  compassed  by  many  ponderous  tomes.  The  style  is  simple,  and 
technicalities  are  translated  into  common  phrase.  The  author's  enunciations  of  pnn- 
ciples  are  decisive,  but  marked  by  a  prudent  regard  for  authority."  —  Boston  Ad- 
vertiser. 

"  This  treatise  is  designed,  as  the  title-page  states,  to  introduce  students  of  the  law 
to  their  chosen  profession,  and  we  have  the  authority  of  eminent  lawyers  that  it 
answers  this  purpose  better  than  any  of  its  predecessors."  —  Chicago  Tribune. 


"Wlieaton's  International  Law. 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  the  late  Hon, 
Henry  Wheaton.  Sixth  Edition,  Revised,  Annotated,  and 
brought  down  to  the  present  time,  with  a  Biographical  Notice  of 
Mr.  Wheaton,  and  an  Account  of  the  Diplomatic  Transactions  in 
which  he  was  concerned.  By  Hon.  William  Beach  Lawrence, 
formerly  Charge  d' Affaires  at  London.     8vo.     $6.00. 

"  After  the  unqualified  praises  which  the  most  distinguished  jurists  and  publicists  of 
America  and  Europe  have  united  in  bestowing  upon  Dr.  Wheaton's  Elements  of  In- 
ternational Law,  and  when  the  work  has  become  a  standard  authonty,  const.antly 
recoo-nized  by  diplomatists  in  all  parts  of  the  world,  we  think  it  would  be  quite  super- 
fluous to  enlarge  upon  its  merits.  Wheaton's  prci-minence  in  the  law  of  nations  is  as 
finnly  establislied  as  tliat  of  Kent  and  Story  .in  municipal  law,  and  his  name  will,  like 
theirs,  reflect  honor  upon  our  country  through  all  time."  —  N.  Y.  Com.  Advertiser. 

"  Wheaton's  work  is  now  everywliere  regarded  as  an  authority  in  questions  of  the 
Law  of  Nations.  Mr.  Lawrence,  in  his  introductory  remarks,  says  that  '  in  the  cabi- 
nets of  Europe  it  has  replaced  the  elegant  treatise  of  Vattel.'  It  is  more  generally  cited, 
we  believe,  in  courts,  than  any  other  treatise  on  public  law."  —  N.  Y.  Eve.  Jrost. 


Ware's  Beports. 

REPORTS  OF  CASES  argued  and  determined  in  the  District 
Court  of  the  United  States  for  the  District  of  Maine.  Second 
Edition,  revised  and  corrected  by  AsnoR  Ware.     8vo.   $5.50. 


Cushing's  Parliamentary  Law. 

ELEMENTS  OF  THE  LAW  AND  PRACTICE  OF  LEGIS- 
LATIVE ASSEMBLIES  IN  THE  UNITED  STATES  OF 
AMERICA,  by  Luther  Stearns  Cushing.     Royal  8vo.   $5.00. 


U.  S.  Annual  Digest,  1855. 

UNITED  STATES  DIGEST;  Containing  a  Digest  of  the  Decis- 
ions of  the  Courts  of  Common  Law,  Equity,  and  Admiralty  in  the 
United  States  and  in  England,  for  the  year  1855.  By  John 
Phelps  Putnam,  Esq.     Royal  ^vo.     $5.00. 


LAW    BOOKS    IN    PRESS 

AND   PREPARING  FOR  PUBLICATION. 


I. 

A  SELECTION  OF  LEADING  CASES  ON  ADMIRALTY 
LAW,  with  Notes,  by  B.  R.  Curtis,  LL.  D. 

II. 
AMERICAN  RAILWAY  CASES.    Edited  by  Chauncet  Smith 
and  S.  W.  Bates,  Esqs.     Vol.  3. 

m. 

UNITED  STATES  DIGEST ;  containing  a  Digest  of  the  Decis- 
ions of  the  Courts  of  Common  Law,  Equity,  and  Admiralty  in  the 
United  States  and  m  England,  for  the  year  1856.  By  George 
S.  Hale,  Esq.     Royal  8vo. 

IV. 

A  TREATISE  ON  THE  REVENUE  LAWS  OF  THE 
UNITED  STATES,  by  C.  C.  Andrews,  Esq.     1  vol.  8vo. 

V. 
COMMENTARIES    ON   CRIMINAL  LAW.     By  Joel  Pren- 
tiss  Bishop,   Esq.,   author  of  "  Commentaries   on   the   Law   of 
Marriage  and  Divorce."     Vol.  II.,  containing  the  Law  of  Specific 
Offences. 

VI. 
THE   PRINCIPLE   AND    RULES    OF   LAW  regulating   the 
Property  of  Husband  and  Wife,  and  Civil  Actions  therefor.     By 
Hon.  Edvtard  G.  Loring. 


8 


VII. 
A  TREATISE  ON  MARITIME  CONTRACTS.     By  Hon.  The- 
oPHiLus  Parsons,  LL.D.,  Dane  Professor  in  the  Law  School  of 
Harvard  University.     2  vols.  8vo. 

vni. 

A  TREATISE  ON  THE  LAW  OF  RAILWAYS.  By  Isaac 
F.  Redfield,  LL.D,,  Chief  Justice  of  Vermont.  1  vol.  8vo. 
(Ready  in  October.) 

IX. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq. 


A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication  of 
Travelling,  Travellers,  etc. ;  by  Joseph  K.  An  cell.     1  vol.  8vo. 

XI. 

ARBITRATION  AT  COMMON  LAW —  In  Equity,  and  under 
the  Statutes  of  the  States  of  the  United  States.  By  the  Hon. 
Edward  G.  Loring.     1  vol.  8vo. 

XII. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STAT- 
UTE OF  FRAUDS.     By  C.  Browne,  Esq.     1  vol.  8vo. 

This  book  will  aim  to  present  a  full  view  of  the  Law,  as  held  by  the  English  and 
American  Courts,  upon  the  construction  of  the  Statute  29  Car.  11,  cap.  3,  with  the 
modifications  under  which  it  has  been  adopted  in  the  different  States  of  the  Union. 
Comprising  the  latest  rulings  in  both  countries,  with  an  appendix,  giving  an  analytic 
view  of  the  EngUsh  and  American  enactments,  with  their  successive  alterations. 

xni. 

A  TREATISE  ON  THE  LAW  OF  BANKRUPTCY  AND 
INSOLVENCY.     By  a  member  of  the  Boston  Bar.     1  vol.  8vo. 

XIV. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Horace  Gray,  Jr.  Esq.     Vol.  IV. 

XV. 

REPORTS  OF  CASES  ARGUED  AND  DETERMINED  IN 
THE  SUPREME  JUDICIAL  COURT  OF  MASSACHU- 
SETTS.    By  Hon.  Luther  S.  Gushing.    Vol.  XL 

XVI. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Chauncet  Smith,  Esq.     Vol.  XXXVIII. 


H.  H.  BANCROFT  &  CD'S 


-«—>»••»—>- 


P^essrs.  f  ittk,  ^rofoit  '&  (iu  Sistdfeiteoits  fmh. 


Over  10,000  Volumes  Messrs.  Harper's  publications, 
at  an  addition  of  actual  expense  only,  to  the  publishers  pri- 
ces.    For  New  Books,  see  last  number  Harper's  Magazine. 


Agents  for  the  sale  of  Messrs.  Derby  &  Jackson's 
publications,  of  which  we  keep  in  store,  a  stock  of  about 
12,000  Volumes. 


From  New  York,  Boston  and  Philadelphia,  we  are 
in  constant  receipt  of  the  choicest  works  in  every  depart- 
ment of  Eno'lish  and  American  Literature. 


A  Fair  Assortment  Medical  Books. 


Sole  Agents  for  the  Standard  Series  of  School  Books, 
by  far  the  best  and  most  attractive  ever  before  used  in  Schools. 


Messrs.  J.  G.  Shaw  &  Go's  Blank  Work  only. 


A  very  heavy  Stock  at  all  times,  of  from  the  cheap- 
est American  to  the  finest  English  STATIONERY,  at  a 
still  further  reduction  in  prices. 


The  attention  of  the  trade  is  respectfully  called  to 
our  fine  assortment  of  goods  and  our  superior  facilities. 


CATALOmJE    OF   LAW    BOOKS. 


Oliver's  Forms  and  Precedents 5  00 

Owen  on  Bankruptcy 3  50 

Parsons  on  Contracts.  2  vols 11  00 

Parsons  on  Mercantile  Law 5  50 

Parsons"  Laws  of  Business  for  Business 

Men 4  00 

Paige's  Chancerv  Keports,  11  vols 61  00 

Paine's  C.  C.  Reports,  2  vols 11  00 

Parker's  Criminal  Reports,  2  vols 9  00 

Phillips  and  Amos  on  Evidence,  2  vols.  7  00 

Pothier  on  Partnership 1  00 

Pothier  on  Obligations,  2  vols 8  00 

Pierce's  Ameriean  Rail  Road  Law 5  50 

Peters's  Condensed  Reports.  6  vols 33  00 

Peters's  Federal  Digest,  2  vols 10  00 

Ray's  Medical  Jurisprudence  of  Insan- 
ity   2  50 

Robb's  Patent  Cases,  2  vols 10  00 

Rceve"s  Domestic  Relations 3  00 

Rockwell's  Spanish  and  Mexican  Law..  7  50 

Russell  on  Crimes,  2  vols 12  00 

Ro.scoe  on  Criminal  Evidence 5  50 

Roper  on  Legacies,  2  vols 10  00 

Roper  on  Remainders,  2  vols 8  00 

Rawle  on  Covenants  for  Title 5  50 

Story's  Commentaries  on  Agency 5  00 

Story's  Commentaries  on  Bailments. ...  5  00 

Story  on  Bills  of  Exchange 5  50 

Story  on  the  (  ontlict  of  Laws 6  50 

Story  on  the  ( Oiistitutiou,  2  vols 7  50 

Story  on  Eiiuity  .Tiiiisprudence,  2  vols. .  11  00 

Story  on  Partnership 5  50 

Story  on  E<iuity  Pleading 6  00 

Story  on  Promissory  Notes 5  50 

Story  on  the  Law  of  Contracts,  2  vols. .  11  00 

Story  on  the  Law  of  Sales 4  50 

Sandford's  Chancery  Reports,  4  vols. . .  20  00 
Sandford's  Superior  Courts  Reports,  5 

vols 26  50 

Saunders'  Reports,  3  vols 12  00 

Smith's  Constitutional  Law 5  Of» 

Smith's  N.  Y.  Court  of  Appeals  Reports, 

voll 4  00 

Sedgwick  on  Damages 5  50 

Sedgwick  on  the  Construction  of  Sta- 
tutes   5  50 

Seaton's  Forms  of  Decrees  in  Equitv. ...  2  50 

Stephen's  New  Cnnniicntarics,  4  vols. . .  12  00 

Spence'8  Efjuitv  .Iini^di<-ti()i;,  2  vols....  9  (X) 

Smith's  Landlord  1111(1  Iciiant 3  00 

Smith's  Leading  (  ases,  2  vols 12  50 

Smith's  Real  and  Personal  Propertj^... .  4  50 

Smith's  Chancery  I'ractice,  2  vols 6  110 

Sugdcn  on  Powers,  2  vols 7  00 

Starkie  on  Evidence — New  Ed.  in  Press. 

Sugden  on  Vendors,  2  vols 10  00 


Smith's  Mercantile  Law 4  00 

Seldeu's  N.  Y    Court  ol  A^jpeals  Re- 
ports, 5  vols 20  00 

Selwyn's  Nisi  Prius,  2  vols 11  00 

Sanders  on  Uses  and  Trusts 4  50 

Sanders  on  Pleading  and  Evidence,  3 

vols 15  00 

Taylor's  Landlord  and  Tenant 4  50 

Thornton  on  Conveyancing. 4  50 

Train  and  Heard's  Precedents  of  Indict- 
ments      4  00 

Tillinghast  on  Limitations 3  00 

Taylor  on  Wills,  2  vols 5  00 

Taylor  on  Executors 1  00 

Trial  of  Huntington 3  00 

Tapping  on  Mandamus 3  50 

Troubat  on  Partnership 5  00 

Tinlasou"s  Leading  Cases 1  00 

Tidd's  Practice,  2  vols 11  00 

Taylor's  Law  Glossary 4  50 

Texas  Reports,  17  vol.s 136  00 

Texas  Digest 12  00 

United  States  Digest,  16  vols 93  00 

United  States  Equity  Digest,  2  vols 12  00 

United  States  Statutes  at  Large,  11  vols.  55  00 

United  States  Criminal  Digest 5  50 

Voorhies-  New  York  Code,  1857 6  00 

Van  Sant  voord's  Pleailing 5  50 

VattelV  Law  of  Nations 4  00 

AValker's  Introduction  to  American  Law    5  50 

Walkers  f  henry  of  Common  Law 1  25 

AVheaton's  International  Law 6  00 

"VVigram's   Points  in  the  Law  ot  Dis- 
covery     3  00 

AVebster's  Works,  6  vols.,  and  Private 

Correspondence,  2  vols 

Wendell's  New  York  Reports,  26  vols.  .130  00 

Willard's  Equity  Jurisprudence 5  50 

Wheaton's  Lawof  Nations 5  00 

Wheeler's  Criminal  Trials,  3  vols 12  00 

ATharton's  State  Trials 6  00 

Williams  on  Personal  Property 4  00 

Williams  on  Real  Property 4  00 

Wills  on  Circumstantial  lividence 1  50 

White's  Land  Laws,  2  vols 10  00 

AA'oolrych  on  AA'aters 3  00 

AVendell's  Blackstone,  4  vols 7  00 

AVilliams  on  Executors,  2  vols 10  00 

AA'il ford's  Ecjuity  I'lcading 1  25 

AVharton    and    Stille's    Medical    Juris- 

Iinidiiice 6  50 

Whaitons  Homicide 4  50 

AVhartons  Precedents 6  00 

AVharton's  Criminal  Law 7  50 

AV'hittaker's  N.  Y.  Practice,  2  vols 7  60 


Cata,logues  of  all  the  principal  Publishers  in  the  United  States  gratis. 

H.  H.  BANCROFT  &  CO. 


SAN  FRANCISCO. 


A    TEEATISE 


ON  THE   LAW   OF 


SUITS  BY  ATTACHMENT 


THE    UNITED    STATES 


CHARLES    D.    DRAKE, 

OF    ST.    LOUIS,    3IISS0OEI. 


BOSTON: 

LITTLE,  BROWN  AND   COMPANY. 

1854. 


Entered  according  to  the  Act  of  Congress  in  the  year  1854,  by 

CHARLES   D.  DRAKE, 

In  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Jlissouri. 


CAMimiDGE: 
ALLEN   AXD   FARXUAM,   PRIKTEUS. 


TO      THE      HONORABLE 

JOHN  MCLEAN,   OF  OHIO, 

ONE  OF  THE  JUSTICES  OF  THE   SUPKEME   COUET   OF   THE   UNITED    STATES, 

NOT   LESS   DISTINGUISHED  FOR  PRIVATE  VIRTUES  THAN   FOR   ELEVATED 

JUDICIAL   CHARACTER   AND   ATTAINMENTS,    THIS   RESULT    OF    THE 

LABORS     OF    ONE    WHOM    HE    BEFRIENDED    IN   YOUTfi 

WITH  PATERNAL  CARE,  AND  WHO  HAS  EVER  SINCE 

DEEMED  IT  A  PRIVILEGE  TO  BE  ADMITTED 

TO   HIS    KINDLY   REGARD, 

IS      RESPECTFULLY      AND      GRATEFULLY 

DEDICATED 

BY 

THE    AUTHOR. 
i 


671416 


PREFACE. 


The  necessity  for  a  work  on  the  law  of  Suits  by  Attach- 
ment in  the  United  States,  occurred  to  me  early  in  my  pro- 
fessional life ;  but  I  shared  the  then  prevalent  impression  of 
the  Bar,  that  the  Attachment  Acts  of  the  several  States  were 
so  dissimilar  as  to  baffle  any  attempt  at  a  systematic  treatise 
on  that  subject,  based  on  the  jurisprudence  of  the  whole 
country  and  adapted  for  general  use.  Some  years  since, 
however,  in  preparing  for  the  argument  of  a  question  of  gar- 
nishment, an  examination  of  the  Reports  and  legislation  of 
a  majority  of  the  States,  satisfied  me  —  and  all  subsequent  • 
researches  have  but  confirmed  the  opinion  —  that  the  diver- 
sity in  the  statutes  constituted  in  reality  no  impediment  of 
any  moment  to  the  successful  preparation  of  such  a  treatise. 
The  purpose  to  prepare  this  volume  was  then  formed,  and 
has  been  prosecuted,  at  irregular  intervals,  in  the  midst  of 
other  and  more  pressing  avocations,  until  the  result  is  now 
submitted  to  the  profession. 

The  value  of  the  proceeding  by  Attachment  is  everywhere 
asserted  in  the  reported  opinions  of  our  highest  State  courts, 
and  is  universally  and  practically  illustrated  in  the  history  of 
the  Colonial,  Territorial,  and  State  legislation  of  this  country. 
Among  the  early  statutes  enacted,  have  always  been  those 


■  VI  PREFACE. 

authorizing  the  preliminary  attachment  of  the  property  of 
debtors ;  and  the  general  tendency  has  been,  and  is,  to  en- 
large the  scope  and  increase  the  efficiency  of  this  remedy. 
Upon  these  grounds  alone  the  importance  of  this  subject 
might,  if  necessary,  be  amply  vindicated ;  but  on  that  point 
no  doubt  has  at  any  time  distvTrbed  the  prosecution  of  my 
task.  ]My  conviction  is,  that  on  no  branch  of  the  law  is  a 
treatise  more  needed  by  the  profession  in  this  country  than 
on  this ;  and  it  is  gratifying  to  know  that  such  is  the  general 
opinion  of  my  professional  brethren,  wherever  the  proposed 
preparation  of  this  work  has  been  known.  It  is  now  to  be 
decided  whether  this  attempt  to  supply  an  acknowledged 
need  will  be  regarded  with  equal  favor. 

The  materials  here  wrought  together  are  almost  wholly 
American.  Great  Britain,  the  fountain  of,  and  exercising 
continually  a  marked  influence  over,  our  jurisprudence  gener- 
ally, contributes  in  this  department  comparatively  nothing. 
In  that  country  the  Bankrupt  law,  and  the  process  against 
the  body,  leave  little  room  or  occasion  for  a  general  system  of 
'  Attachment ;  while  the  limited  proceeding  under  the  custom 
of  London  gives  rise  to  few  cases  which  find  their  way  into 
the  courts  of  Westminster  Hall.  Here,  however,  where  no 
general  Bankrupt  law  exists,  and  imprisonment  for  debt  is  to 
a  great  extent  abolished,  it  is  widely  different.  The  universal 
use  of,  this  remedy  fills  our  Reports  with  cases  presenting 
every  variety  of  questions,  and  the  lapse  of  time  and  the  ac- 
cumulation of  adjudications  seem  to  make  no  sensible  dimi- 
nution in  the  annual  number  of  reported  cases,  nor  any  great 
difierence  in  Iheir  iiovelty  or  their  interest.  Hence  a  work  of 
this  descri])tion  reflects  in  a  high  degree  a  legal  system  and  a 
branch  of  jurisprudence  peculiarly  our  own;  and  I  confess  to 
somewhat  of  satisfaction  at  being  instrumental  in  presenting 


PREFACE.  Yll 

to  the  Bar  of  the  United  States  a  volume  which,  without 
intentionally  slighting  what  is  to  be  found  in  the  English 
Reports  on  the  subject,  may  be  justly  claimed  to  be  thor- 
oughly American.! 

My  effort  has  been  to  make  it  methodical,  perspicuous, 
accurate,  and  sufficiently  full.  Had  I  at  any  time  supposed 
it  free  from  defects  in  these  and  other  respects,  the  delusion 
would  have  been  effectually  dispelled  by  the  perusal  of  it  in 
print,  as  the  sheets  (not  read  by  me  in  the  proofs)  have  been 
forwarded  to  me.  Many  defects  and  blemishes  will  no  doubt 
be  perceived  by  others,  as  they  have  been  by  myself,  when 
too  late  to  correct  them.  In  regard  to  them  I  deprecate 
neither  enlightened  criticism  nor  fair  censure;  but  yet  my 
trust  is  that  they  will  not  be  regarded-as  materially  impauing 
the  value  of  the  work,  and  that  this  essay  toward  discharging 
in  part  my  debt  to  the  profession  of  my  choice,  by  lightening 
the  labors  of  my  compatriots  in  its  ranks,  may  be  found  a 
useful  aid,  and  may  meet  with  an  indulgent  if  not  a  cordial 
reception. 

It  were  improper  to   close   these  brief  prefatory  remarks,  ' 


1  In  this  connection  it  may  properly  be  stated,  that,  of  the  1,200  cases  cited  in 
the  following  pages,  only  deven  are  English ;  the  remainder  being  derived  from 
the  Keports  of  our  Federal  courts,  and  those  of  twentij -eight  out  of  the  thirty-one 
States.  A  comparison  of  this  work  with  other  American  treatises  would  exem- 
plify the  extent  to  which  on  other  subjects  English  law  influences  and  is  com- 
mingled with  ours.  The  valuable  works  of  Mr.  Angell  afford  the  elements  of  a 
partial  comparison  in  this  respect,  as  in  them  the  American  and  the  English  cases 
are  separately  indexed.  In  the  second  edition  of  his  treatise  on  Limitation  there 
are  1,228  American,  and  4.52  English  cases;  in  the  third  edition  of  his  work  on 
Corporations,  there  are  1,358  American  and  915  English  cases;  in  his  volume  on 
the  Law  of  Carriers,  there  are  484  American  and  574  English  cases  ;  and  in  that 
on  Fire  and  Life  Insurance  there  are  424  American  and  2S2  English  cases. 


viii  PREFACE. 

without  an  aclmowledgment  of  my  obligations  to  the  treatise 
of  L.  S.  Gushing,  Esq.,  on  the  Trustee  Process  of  Massa- 
chusetts and  Maine,  for  the  general  features  of  the  plan  of 
arrangement  of  that  portion  of  these  pages  relating  to  Gar- 
nishment and  Garnishee. 

Charles  D.  Drake. 

St.  Locis,  Missouri,  July  1,  1854. 


NOTE. 

All  the  references  in  the  Table  of  Contents,  Index  to  Cases  cited,  and 
General  Index  are  to  the  Sections. 

Following  the  commendable  example  of  Mr.  Bishop,  in  his  Commentaries 
on  the  Law  of  Marriage  and  Divorce,  the  number  of  the  last  section  on 
each  page  is  placed  at  the  top  ;  that  of  the  page,  at  the  bottom,  in  brackets. 


TABLE    OF    CO^^  TEXTS. 


Page 
Index  to  Cases  Cited, xvii 

Skctiox 
IXTKODUCTIOX, 1       ^^ 


CHAPTER  T. 

Tte  leading  statutory  provisions  of  the  several  States  and  Ter- 
ritories of  the  United  States,  in  relation  to  suits  by  Attach- 
ment,        


11—45 


CHAPTER  H. 

For  what  cause  of  action  an  Attachment  may  issue,  .        •        -IC — 65 

CHAPTER  HI. 

Of  absent,  absconding,  concealed,  and  non-resident  debtors,  and 

debtors  removing  or  fraudulently  disposing  of  their  property,         66 — 92 

CHAPTER  IT. 

Of  the  liability  of  corporations  and  representative  persons  to  be 

sued  by  Attachment, ^3     101 

CHAPTER  V. 

Of  the  Affidavit  for  obtaining  an  Attachment,     ....     102—118 

CHAPTER  YI. 

Of  Attachment  Bonds, 119—178 


,      XU  CONTENTS. 

CHAPTER  yn. 

Of  the  execution  and  return  of  Attachment,        ....     179 — 217 

CHAPTER  ym. 

Effect  and  office  of  an  Attachment, 218—226 

CHAPTER  IX. 

Attachment  of  Real  Estate, 227—235 

CHAPTER  X. 
Of  Attachment  of  Personal  Property, 236—257 

CHAPTER  XI. 

Of  Simultaneous  and  Successive  Attachments,  .         .         .     258 — 2G8 

CHAPTER  XII. 
Custody  of  attached  property,  26D— 289 

CHAPTER  Xm. 

Of  Bond  for  dissolving  an  Attachment,  and  Bond  for  the  forth- 
coming of  attached  property,  290 — 314 

CHAPTER  Xiy. 

Of  Bailment  of  attached  property, 315 — 864 

CHAPTER  Xy. 

Of  Attachments  improvidently  issued,  and  the  means  of  defeat- 
*■  ins  them, 365 — 380 

CHAPTER  Xyj. 

Of  the  Dissolution  of  an  Attachment, 381 — 400 


CONTENTS.  XIU 

CHAPTER  XVII. 

Of  Notice  to  absent  defendants  by  publiccation,  .  .     401—409 

CHAPTER  XVIII. 

Of  Garnisbment.  —  General  Views.  — Division  of  tbc  subject,     410—424 

CHAPTER  XIX. 

What  personal  property  of  tbe  defendant,  in  the  garnishee's  pos- 
session, will  make  the  garnishee  liable, 425 — 435 

CHAPTER  XX. 

The  character  of  the  possession  of  personal  property  by  a  gar- 
nishee, which  -will  be  sufficient  to  charge  him,  .         .         .     436 — 459 

CHAPTER  XXI. 

The  garnishee's  liability,  as  affected  by  the  capacity  in  which  he 

holds  the  defendant's  property, 4G0 — 497 

CHAPTER  XXn. 

The  garnishee's  liability,  as  affected  by  previous  contracts  touch- 
ing the  defendant's  property  in  his  hands,        ....     498 — 504 

CHAPTER  XXIH. 

The  garnishee's  liability,  as  affected  by  a  previous  assignment  of 
the  defendant's  property  in  his  hands,  or  by  its  being  subject 
to  a  lien,  mortgage,  or  pledge, 505 — 521 

CHAPTER  XXIV. 

The  liability  of  a  garnishee  as  a  debtor  of  the  defendant.  —  Gen- 
eral Views. —  Division  of  the  subject, 522 — 547 

B 


Xiv  CONTENTS. 


CHAPTER  XXY. 

The  garnishee's  liability,  as  affected  by  the  tune  when  his  debt 

to  the  defendant  is  payable, 548 — 551 


CHAPTER  XXVI. 

The  garnishee's  liability,  as  affected  by  his  having  codebtors,  and 
by  the  number  of  the  defendants,  and  the  number  of  his  cred- 
itors,             552 — 5G5 


CHAPTER  XXVn. 

The  garnishee's  liability,  as  affected  by  the  want  of  privity  of  con- 
tract or  of  interest  between  him  and  the  defendant,         .        .  5C6 


CHAPTER  XXYin. 

The  garnishee's  liability  as  a  party  to  a  promissory  note,     .         .     5G7 — 599 

CHAPTER  XXIX. 

Tlie  garnishee's  liability,  as  affected  by  preexisting  contracts 

with  the  defendant  or  third  persons, 600 — G05 

CHAPTER  XXX. 

The  garnishee's  liability,  as  affected  by  a  fraiuhilent  attempt  by 

the  defendant  to  defeat  the  payment  of  his  debts,    ,         .         .     GOG — G09 

CHAPTER  XXXL 

The  garnishee's  liability,  as  affected  by  an  equitable  assignment 

of  the  debt, 610— G24 

CHAPTER  XXXH. 

The  garnishee's  liability,  as  affected  by  the  commencement,  pen- 
dency, and  completion  of  legal  proceedings  against  him  by  the 
defendant,  for  the  recovery  of  the  debt,  ....     C25 — G43 


CONTENTS.  XV 

CHAPTER  XXXIII. 
Of  the  answer  of  the  garnishee, 644—6 . 6 

CHAPTER  XXXIV. 

Extent  of  the  garnishee's  liability,  as  to  amount,  and  as  to  the 

time  to  which  the  garnishment  relates, 67/      695 

CHAPTER  XXXV. 

Of  the  garnishee's  right  of  defence  against  his  liability  to  the  de- 

fenda^nt, 696-712 


CHAPTER  XXXVI. 

Of  the  garnishee's  right  to  take  advantage  of  defects  in  the  pro- 
ceedings against  the  defendant,  or  to  plead  in  the  defendant's 
name,"   .° 713—718 


CHAPTER  XXXVn. 

"Where  attachment  is  a  defence,  and  the  manner  of  pleading  it,  719 — 752 

CHAPTER  XXXVHI. 

Of  action  for  Malicious  Attachment, 753 — 769 

CHAPTER  XXXIX. 

Of  Fraudulent  Attachments,       .         . 770—793 


INDEX 


TO    THE     CASES     CITED, 


A. 

SECTION 

Adamsi'.  Balch,  5Maine,  188,  ........         283 

u.  Barret,  2  New  Hamp.  374,  .         .         .      416,408,482,522 

V.  Cordis,  8  Pick.  2G0, 684 

Z7.  Fox,  17  Yerniont,  361, 360 

r.  Paige,  7  Pick.  542,  '"''S 

u.  Robinson,  1  Pick.  461, 213,511,617 

Adlumu.  Yard,  1  Rawle,  163, 671 

Alexander  u.  Hutchinson,  9  Alabama,  825, 160 

Alford  V.  Jolinson,  9  Porter,  320, 135 

AUard  v.  DeBrot,  15  Louisiana,  253,  718 

Allen  V.  Butler,  9  Vermont,  122, 349 

i;.  Carty,  19  Vermont,  65,  344 

r.  HaU,  5  Metcalf,  263,  .         .         .  517,677,692,705,712 

r.  Megguire,  15  ]\Iass.  490, 517 

Alston  V.  Clay,  2  Haywood,  N.  C.  171,  ....  247,  489 

American  Ex.  Bk.  v.  Morris  C.  &  B.  Co.,  6  Hill,  362,         .        .      218,  224 
Amos  u.  Allnutt,  2  Smedes&  Marshall,  215,  ....         130 

Anderson  v.  Scott,  2  Missouri,  15, 196 

Andrews  t;.  Ludlow,  5  Pick.  28,        .         .         .  425,428,436,437,519 

Armor  v.  Cockburn,  4  Martin,  N.  S.  667, 501 

Arnold  V.  Brown,  24  Pick.  89, 219 

Ashby  V.  Watson,  9  Missouri,  236, 651 

Ashmun  v.  Williams,  8  Pick.  402, 249 

Atkins  V.  Prescott,  10  New  Hamp.  120,         ....      553,  554,  561 

Atlas  Bank  v.  Nahant  Bank,  23  Pick.  488, 225 

Averill  v.  Tucker,  2  Cranch,  C.  C.  544, 494 


XVlll 


INDEX    TO    THE    CASES    CITED. 


238 
.  221 

232 

238,  341,  519,  520 

268,  391 

.  286 

220 

.  208 


B. 

Babcock  v.  ]\Lilble,  7  Martin,  N.  S.  139, 
Bach  I'.  Goodrich,  9  Robinson,  La.  391, 
Bacon  v.  Leonard,  4  Pick.  277, 
Badlam  v.  Tucker,  1  Pick.  389,     .... 
Bagley  v.  White,  4  Pick.  395,  .        .        .         , 

Bailey  v.  Hall,  16  Maine,  408,       .... 
"  Bailllo  V.  Poisset,  8  Martin,  N.  S.  337, 

Baird  u.  Rice,  1  Call,  18, 

Baker  v.  Fuller,  21  Pick.  318,  ....  322,  324,  342,  348 

y.  Moody,  1  Alabama,  315, 513,676 

Baldwin  ?;.  Jackson,  12  Mass.  131, 329,388,390 

Ball  V.  Gardner,  21  Wendell,  270,         .        .        .      ' .        .         .         .149 
Bank  v.  Levy,  1  McMullan,  431, 516 

of  Alabama  V.  Fitzpatrick,  4  Humphreys,  311,     .        .        .      120,129 

of  Chester  v.  Ralston,  7  Penn.  State,  482,         ....        470 

of  N.  America  r.  Mc Call,  3  BInney,  338,  .        .         .         .514 

of  St.  Mary  r.  Morton,  12  Robinson,  La.  409,  .         .         .         614 

Bannister  v.  Higginson,  15  Maine,  73, 216,  232 

Banta  y.  Reynolds,  3  B.  Monroe,  80, 123,180 

Barker  v.  IMiller,  6  Johnson,  195, 269,  320 

tj.  Tabor,  4  Mass.  81,  669 

Barnard  I'.  Sebre,  2  A.  K.  Marshall,  151, ]09 

Barnes  v.  Treat,  7  Mass.  271,  471,  472 

V.  Webster,  16  Missouri,  258, 148 

Barnet's  Case,  1  Dallas,  152,  82,  84 

Barnett  v.  Weaver,  2  Wharton,  418,  471,  474 

Barr  v.  Perry,  3  Gill,  313, '      .         .         .         714 

Barrett  v.  White,  3  New  Hamp.  210, 185,  186 

Barron  v.  Cobloigh,  11  New  Ilamp.  557,  .         .         .  334,  359,  360 

Barrow  I'.  West,  23  Pick.  270,     .         . 727 

Bates  V.  Jenkins,  1  Illinois  (Breese)  Appendix,  25,  .         .         .         378 

Baxter  v.  Currier,  13  Vermont,  615,  418 

V.  Rice,  21  Pick.  197, .         198 

Baylies  v.  Houghton,  15  Vermont,  620, 575 

Beach  v.  Abbott,  4  Vermont,  G05, 322,  324,  350 

Bcal  I'.  Alexander,  1  Robinson,  La.  277,  and  7  Jbul.  349,      .     295,  296,  297 
Bean  v.  Miss.  Union  Bank,  5  Robinson,  La.  833,       ....         692 

BeckwIth  v.  Baxter,  3  New  Hamp.  67, 471 

Belcher  v.  (Jrubb,  4  Harrington,  461, 642 

I'cll  r.  Kcndrick,  8  New  Hamp.  520,  663 

Bellows  &  Peck's  Case,  3  Story,  428, 226,  400 


INDEX   TO   THE   CASES    CITED. 


XIX 


Benson  v.  Campbell,  6  Porter,  455, 
Benton  v.  Lindell,  10  Missouri,  557, 

V.  Roberts,  2  Louisiana  Annual,  243, 

Berry  v.  Spear,  13  Maine,  187, 
Bethune  v.  Gibson,  2  Brevard,  501, 
Bibb  V.  Smith,  1  Dana,  580,      . 
BIckerstaff  v.  Patterson,  8  Porter,  245, 
Bicknell  v.  Trickey,  34  Maine,  273, 
Bigelow  V.  "Willson,  1  Pick.  485, 
Bishop  V.  "Warner,  19  Conn.  460,      . 
Bissell  V.  Huntington,  2  Jsew  Hamp.  142, 

V.  Strong,  9  Pick.  562, 

Black  V.  Paul,  10  Missouri,  103, 

V.  Zacharie,  3  Howard,  Sup.  Ct.  483, 

Blackburn  v.  Davidson,  7  B.  Monroe,  101, 
Blair  v.  Cantey,  2  Spears,  34, 

V.  Rhodes,  5  Alabama,  648, 

Blake  v.  Jones,  7  Mass.  28,        .         .        . 
— —  V.  Shaw,  7  ;Mass.  505, 

V.  Williams,  6  Pick.  286, 

Blanchard  r.  Cole,  8  Louisiana,  160,    . 

V.  Grousset,  1  Louisiana  Annual,  96, 

Bliss  r.  Stevens,  4  Vermont,  88, 
Boardman  v.  Bickford,  2  Aikens,  345, 

r.  Roe,  13  Mass.  104, 

Bond  V.  Padelibrd,  13  Mass.  394,     . 

r.  Ward,  7  Mass.  123, 

Boon  i".  Maul,  Pennington,  631, 

Boston  Type  &c.  Co.  v.  Mortimer,  7  Pick.  166 
Bowman  v.  Stark,  6  New  Hamp.  459, 
Boyd  V.  Boyd,  2  Xott  &  M-Cord,  125, 
Boyes  v.  Coppinger,  1  Yeates,  277, 
Bradbury  i-.  Taylor,  8  Maine,  130, 
Bradford  v.  Gillespie,  8  Dana,  67, 

V.  McClelland,  23  Maine,  302,       . 

Bradley  v.  Richmond,  6  Vermont,  121, 
Brainard  v.  Burton,  5  Vermont,  97, 

t'.  Bushnell,  11  Conn.  16, 

Branch  Bank  v.  Poe,  1  Alabama,  396, 
Brannon  v.  Xoble,  8  Georgia,  549, 
Branson  v.  Shinn,  1  Green,  250, 
Brazier  v.  Chappell,  2  Brevard,  107, 
Bretney  v.  Jones,  1  G.  Greene,  306, 
Bridge  v.  Wyman,  14  Mass.  190, 


.       57 

697 

.     295 

216 

.      218,  248,  260 

607 

.     196 

257 

.     219 

184 

286,  336,  347,  363 

418 

.     624 

59 

.     527 

245,  486 

.     527 

714 

.     219,  285 

605 

.         .         .704 

58 

.     344 

.     75,  82 

.      526,  662,  663 

20,  322,  324,  338,  339 

.      182,  188,  244 

757,  760 

.     705 

216 

124 

370 

342 

243 

181 

497 

202 

263 

550,  692,  693 

729 

371 

511 

143 

328 


XX 


INDEX   TO    THE    CASES    CITED. 


Bridges  v.  Perry,  14  Vermont,  262, 

Brigden  v.  Gill,  16  Mass.  522, 

Briggs  I'.  French,  2  Sumner,  251, 

Brinegar  v.  Griffin,  2  Louisiana  Annual,  154, 

Britten  v.  Preston,  9  Vermont,  25  7,      . 

Brode  v.  Fireman's  Ins.  Co.,  8  Robinson,  La.  244, 

Brook  V.  Smith,  1   Salkeld,  280, 

Brooks  V.  Cook,  8  Mass.  246, 

Brotherton  v.  Thompson,  11  Missouri,  94, 

Brown  v.  Atwell,  31  Maine,  351, 

V.  Chaney,  1   Georgia,  412,    .    . 

V.  Cook,  9  Johnson,  361, 

V.  Massey,  3  Stewart,  226, 

V.  Scott,  7  Vermont,  57, 

V.  Silsby,  10  New  Hamp.  521, 

V.  Whiteford,  4  Ptichardson,  327, 

Brownell  r.  Manchester,  1  Pick.  232, 
Bruce  V.  Cook,  6  Gill  &  Johnson,  345, 

V.  Ilolden,  21  Pick.  187, 

V.  Pettengill,  12  New  Hamp.  341, 

Brumgard  v.  Anderson,  16  Louisiana,  341, 
Brundred  v.  Del  Hoyo,  Spencer,  328, 
Buchanan  v.  ^Uexander,  4  Howard,  Sup.  Ct.  20, 
Buckman  v.  Buckman,  4  New  Ilamp.  319, 
Buckmaster  v.  Smith,  22  Vermont,  203, 
Buddington  r.  Stewart,  14  Conn.  404, 
Buford  V.  "Welborn,  6  Alabama,  818, 
Buflington  ?•.  Gerrish,  15  jSIass.  156, 
Bulkley  V.  Eckert,  3  Penn.  State,  368, 
Bullitt's  Ex'rs  V.  Winstons,  1  Munford,  269, 
Burke  V.  Whitcomb,  13  Vermont,  421, 
Burlingame  v.  Bell,  16  Mass.  318, 
Burnham  v.  Folsom,  5  New  Ilamp.  566, 
Burrell,  V.  Letson,  2  Spears,  378,       . 

,  1  Strubhart,  239, 

Burrows  v.  Miller,  4  Howard's  Practice  R.  349, 

I'.  Stoddard,  3  Conn.  160, 

Bursley  v.  Hamilton,  15  Pick.  40, 

Bushell  V.  Commonwealth  Ins.  Co.,  15  Serg.  &  Kawle,  173, 
Buswell  V.  Davis,  10  New  Hamp.  413,       . 

c. 

Cadwell  v.  Colgate,  7  Barbour,  Sup.  Ct.  253, 

Cabill  1-.  Bigelow,  18  Pick.  369, 


271 

6,  442, 

449, 

522 

793 

• 

.  bl 

.,  56 
688 
717 
720 
468 
805 
849 
775 
820 
374 
241 
679 
138 

820, 

338 

341 
118 

200 

268 

388 

198 

317 

334 
375 
86 
494 
772 
289 
242 
667 
239 

460, 

493 

208 

542, 

572 

247 

265 

,  267 
627 

486, 

643 

• 

245, 

436 
83 

338 

360 
95 

792 

293 

, 

603 

,  621 

INDEX   TO    THE    CASES    CITED. 


XXI 


Caignett  v.  Gilbaud,  2  Yeates,  35, 

Cain  V.  Mather,  3  Porter,  224, 

Callender  v.  Duncan,  2  Bailey,  454,     . 

Camberford  r.  Ilall,  3  M'Cord,  345 

Camp  V.  Clark,  14  Vermont,  387, 

Campbell  v.  ^Morris,  3  Harris  &  McHenry,  53 

r.  Ruger,  1  Cowen,  215, 

Canada  v.  South  wick,  16  Pick.  556, 
Canfield  v.  McLaughlin,  10  Martin,  48, 
Cannon  v.  Logan,  5  Porter,  77, 
Caperton  v.  M'Corkle,  5  Grattan,  177, 
Cargill  V.  Webb,  10  New  Hamp.  199, 
Carr  v.  Farlev,  12  Maine,  328,     . 
Carrington  r.  Smith,  8  Pick.  419,      . 
Carrique  v.  Sidebottom,  3  Metcalf,  297, 
Carroll  v.  IMcDonogh,  10  Martin,  609, 
Carter  i-.  Champion,  8  Conn.  549, 
Catlin  I'.  Lowrey,  1  D.  Chipman,  396, 
Central  Bank  r.  Prentice,  18  Pick.  396, 
Chambers  v.  McKee,  1  Hill,  S.  C.  229, 
Chandler  v.  Thurston,  10  Pick.  205,     . 
Chase  v.  Elkins,  2  Vermont,  290,      . 

V.  Manhardt,  1  Bland,  333, 

Chatzel  V.  Botton,  3  M'Cord,  33,       . 
Cheadle  v.  Eiddle,  1  English,  480, 
Chealy  i-.  Brewer,  7  Mass.  260, 
Cheatham  v.  Trotter,  Peck,  198, 
Cheddick  i-.  Marsh,  1  Zabriskie,  463, 
Chenault  v.  Chapron,  5  Missouri,  438, 
Cheongwo  v.  Jones,  3  Washington  C.  C,  3 
Childress  v.  Dickins,  8  Verger,  113, 
Childs  V.  Barrows,  9  Metcalf,  413,    .      '  . 

V.  Ham,  23  Maine,  74, 

Chipman,  In  re,  1  Wendell,  66, 
Chouteau  i\  Sherman,  11  Missouri,  385, 
Church  r.  Knox,  2  Conn.  514, 

Cilley  V.  Jenness,  2  New  Hamp.  87, 

City  Bank  of  New  York  v.  Merritt,  1  Green 

Clap  V.  Bell,  4  Mass.  99, 

Clark,  Matter  of,  3  Denio,  16  7, 

i:  Arnold,  9  Dana,  305, 

f.  Boggs,  6  Alabama,  809, 

v.  Brown,  14  Mass.  271, 

v.  Clough,  3  Maine,  357, 


131 


. 

.  557 

. 

65 

.  138 

23,  142 

,  715,  771 

.  607 

372 

.  260 

274,  357 

.  308 

110 

.  382 

347,  348 

323,  356 

331,  392 

. 

650,667 

722 

.  233 

363 

, 

.  520 

715 

. 

.  239 

241 

.  685 

561 

.  113 

460,493 

376,669 

63 

.  379 

722,  729 

549, 669 

204,  217 

199,  276 

74,  369 

.   91 

560 

274,  280 

371 

.  383 

406 

71 

•  • 

490 

.  417 

318 

XXll 


INDEX    TO    THE   CASES    CITED. 


Clark  V.  Foxcroft,  7  Maine,  348, 

V.  King,  2  Mass.  524,       .... 

V.  Morse,  10  New  Hamp.  236,     . 

V.  Roberts,  1  Illinois  (Breese)  222, 

V.  Viles,  32  Maine,  32, 

Clark's  Ex'rs  v.  Wilson,  3  Washington  C.  C.  560, 

Clay  V.  Scott,  7  B.  Monroe,  554, 

Clayton  v.  Clark,  11  Alabama,  787, 

Clements  v.  Cassilly,  4  Louisiana  Annual,  380,     • 

Cleveland  r.  Clap,  5  Mass.  201, 

Cloud  V.  Smith,  1  Texas,  611,       . 

Coates  V.  Roberts,  4  Rawle,  100,      . 

Coburn  v.  Ansart,  3  Mass.  319, 

Cogswell  V.  Mason,  9  New  Ilamp.  48,       . 

Cohen  v.  St,  Louis  Perpetual  Ins.  Co.,  11  Missouri,  374, 
Colby  V.  Coates,  6  Cushing,  558,       .... 

Colcord  v.  Daggett,  18  Missouri , 

Collins  t'.  Brigham,  11  New  Hamp.  420,  . 

Colvin  t;.  Rich,  3  Porter,  175,        ....       571, 

Colwell  V.  Bank  of  Steubenville,  2  Ohio,  229, 

Commissioners  &c.  v.  Fox,  Morris,  48, 

Commonwealth  v.  Morse,  14  Mass.  217,    . 

Comstock  i\  Farnum,  2  ]\Iass.  96,  ... 

V.  Paie,  18  Louisiana,  479, 

Conant  v.  Bicknell,  1  D.  Chipman,  50, 

Congdon  v.  Cooper,  15  Mass.  10,       . 

Conklin  r.  Harris,  5  Alabama,  213, 

Conn  V.  Caldwell,  6  Illinois  (1  Gilman)  531,     . 

Conrad  x\  McGee,  9  Yerger,  428, 

Cook  V.  Walthall,  20  Alabama,  334, 

Cooper  V.  Mowrey,  16  Mass.  5,     . 

Copelandr.  Weld,  8  Maine,  411,      .'        .         .         . 

Corbyn  v.  Bollman,  4  Watts  &  Scrg.  342,     . 

Corsei;  r.  Craig,  1  Washington  C.  C.  424, 

Cottrell  V.  -Varnum,  5  Alabama,  229, 

Cowpcrthwaite  v.  Sheflield,  1  Sandford,  Sup.  Ct.  416, 

Cox  V.  Roliinson,  2  Robinson,  La.,  313, 

Crabb  v.  Jones,  2  Miles,  130,  .... 

Crane  v.  Freese,  1  Harrison,  305, 

V.  Lewis,  4  Louisiana  Annual,  320, 

Crawford  v.  Clute,  7  Alabama,  157, 

r.  Slade,  9  Alabama,  887, 

Cray  ton  v.  Clark,  11  Alabama,  787,     . 
Creagh  v.  Delanc,  1  Nott  &M'Cord,  189, 


573, 


783,  788 

528,  569 

.     340 

118 

.     425 

62,  385 

.     261 

743 

.     307 

649,  673 

.     376 

727,  739,  751 

463, 496 

235 

.     680 

492 

585,  597 

504 

614,  743,  744 

407 

.     593 

320,  338 

528,  569,  669 

665 

245,  482 

278 

.     143 

388 

77,  111 

416,  522 

.     333 

425,  429 

490, 659 

619 

.     550 


157, 


623 

164,  170,  762 

63d,  642 

245, 481,  482 

50 

.      723,  726 

723,  726 

570,  614,  615 

116 


INDEX   TO    THE    CASES    CITED. 


XXlll 


Crisman  v.  IMatthews,  2  Illinois  (1  Scamraon),  148, 

Crocker  r.  Pierce,  31  Maine,  17  7,         .  .  .  219, 

V.  Radcliffe,  3  Brevard,  23,  .  .  218,  219, 

V. ,  1  Constitutional  Rep.  (Treadway)  83, 

Crosby  v.  Allen,  5  Maine,  543,         .  .  •  •        231, 

Crossman  v.  Grossman,  21  Pick.  21,      . 
Crowninshield  v.  Strobel,  2  Brevard,  80,     . 
Curling  v.  Hyde,  10  Missouri,  3  74,       . 
Curtis  V.  Xorris,  8  Pick.  280, 

V.  Settle,  7  Missouri,  452, 

Cushman  v.  Haynes,  20  Pick.  132, 
Cutler  V.  Baker,  2  Day,  498, 


312 

220,  228 

248,  260 

.       398 

232,  234 

GGO,  C68 

218,  225,  248,  260 

.       468 

500, 516 

113 

518 

734 


D. 


Dame  v.  Fales,  3  New  Hamp.  70, 

Dandridge  v.  Stevens,  12  Smedes  &  Marsliall,  723, 

Daniel  v.  Rawlings,  6  Humphreys,  403, 

Danielson  v.  Andrews,  1  Pick.  199, 

Davenport  v.  Swan,  9  Humphreys,  186, 

V.  Tilton,  10  Metcalf,  320, 

Davidson  v.  Clayland,  1  Harris  &  Johnson,  546, 

V.  Cowan,  1  Devereux,  304, 

Davis  V.  Davis,  2  Gushing,  111, 

V.  Drew,  6  New  Hamp.  399, 

r.  Garrett,  3  Iredell,  459, 

V.  Ham,  3  Mass.  33, 

V.  Knapp,  8  Missouri,  657, 

V.  Miller,  1  Vermont,  9, 

Dawson  v.  Holcombe,  1  Ohio,  135, 

V.  Moons,  4  Munford,  535, 

Day  V.  Bennett,  3  Harrison,  287, 
Deaver  v.  Keith,  5  Iredell,  374, 
Debuys  i'.  Yerby,  1  Martin,  N.  S.  380 
Decoster  v.  Livermore,  4  Mass.  101, 
Degnan  ads  Wheeler,  2  Nott  &  M'Cord,  323, 
Denny  v.  Ward,  3  Pick.  199, 

V.  Warren,  16  Mass.  420, 

V.  Willard,  11  Pick.  519, 

Denton  v.  Livingston,  9  Johnson,  96, 
Desha  V.  Baker,  3  Arkansas,  509, 
Devall  r.  Taylor,  Cheves,  5, 
Devoll  r.  Brownell,  5  Pick.  448, 
Dewar  v.  Spence,  2  Wharton,  211, 


179 

.       113 

596 

784 

425 

226,  395,  400 

246,  488 

216 

.     260,470 

476 

237 

531,  544 

670 

315,  324,  342,  343 

.     245,  481 

208 

371 

526 

99 

.       492 

373 

.  .  .787 

256,  776 

194,  219,  274,  328,  340,  357 

195 

.       221 

109 

657 

204 


XXIV 


INDEX   TO    THE    CASES    CITED. 


Dewey  v.  Field,  4  Metcalf,  381, 
DeWolf  V.  Babbett,  4  Mason,  289, 

V.  Dearborn,  4  Pick.  4G6, 

Dickinson  v.  Strong,  4  Pick.  57, 

. V.  McGraw,  4  Randolph,  158, 

Dider  v.  Courtney,  7  Missouri,  500, 
Didier  v.  Galloway,  3  Arkansas,  501,    . 
Dillenback  v.  Jerome,  7  Cowen,  294, 
Dillon  V.  "Watkins,  2  Spears,  445, 
Divine  v.  Ilarvie,  7  Monroe,  439, 
Dix  V.  Cobb,  4  Mass.  508, 
Donham  v.  Wild,  19  Pick.  520,       . 
Donnell  v.  Jones,  13  Alabama,  490, 
Dore  V.  Dawson,  6  Alabama,  712, 
Dorr  V.  Kershaw,  18  Louisiana,  57, 
Dorsey  v.  Pierce,  5  Howard,  Mi.  173, 
Downer  v.  Brackett,  21  Vermont,  599, 
Downing  v.  ThWYips,  4  Yeates,  275, 
Dranev.  McGavock,  7  Humphreys,  132, 
Drown  v.  Smith,  3  New  Hamp.  299, 
Dubois  V.  Dubois,  6  Cowen,  494, 
Dunklee  v.  Fales,  5  New  Ilamp.  527, 
Dunning  v.  Humphreys,  24  Wendell,  31, 
Durant  i'.  Johnson,  19  Pick.  544, 
Dwinel  v.  Stone,  30  Maine,  384, 


151,  15G,  169, 


274,  357,  360 
239 
.   238 
418,  425,  426 
.   152 
379 
.   120 
320,  338 
.   134 
493 
611,615 
332,  333 
170,  754,  752,  7G8 
569 
295,  296,  297 
207 
226,  400 
385 
486,489 
362 
245,  481 
249,  354,  328,  390 
158,  171,  172 
260 
.   544 


E. 

Earl  V.  Spooncr,  3  Denio,  346, 
Eastman  v.  Avery,  23  INIaine,  248, 
Edgerly  v.  Sanborn,  6  New  Hamp.  397,     . 
Edwards  v.  Delaplaine,  2  Harrington,  322, 
Elliott  V.  Newby,  2  Hawks,  21,       . 
Embrecj  v.  Hanna,  5  Johnson,  101, 
Emerson  v.  Fox,  3  Louisiana,  183, 

V.  Upton,  9  Pick.  167, 

Emery  v.  Davis,  17  ISIaine,  252, 

Enders  v.  Steamer  Henry  Clay,  8  Robinson,  La.  30, 

English  v.  AVall,  12  Robinson,  La.  132, 

Enos  V.  Brown,  1  D.  Chipman,  280, 

V.  Tuttle,  3  Conn.  27, 

V. ,  3  Conn.  247,      .... 

Erskine  v.  Sangston,  7  Watts,  150, 

Erwin  V.  Com.  &  R.  R.  Bank,  3  Louisiana  Annual,  186, 


176 

320 

695 

. 

706 

247 

. 

721 

225 

214 

216 

457 

117 

'l43 

103 

322 

324 

.  595 

609 

. 

671 

671 

, 

592 

INDEX    TO    THE    CASES    CITED. 


XXV 


Evans  V.  King,  7  Missouri,  411, 

V.  Saul,  8  Martin,  N.  S.  247, 

Eveleth  v.  Little,  16  Maine,  374, 


303 

79 

216 


777, 
202,  215,  21G, 

245,  247,  486, 


F. 

Fairbanks  v.  Stanley,  18  IMaine,  296, 
Fairfield  v.  Baldwin,  12  Pick.  388, 

V.  Paine,  23  Maine,  498, 

Falls  V.  Weisslnger,  11  Alabama,  802, 

Farmers  Bank  v.  Beaston,  7  Gill  &  Jolinson,  421, 

V.  Day,  6  Grattan,  360, 

Farmers  &  Mechanics  Bank  v.  Little,  8  Watts  &  Sergeant,  207, 
Farnham  v.  Cram,  15  Maine,  79, 

V.  Gilman,  24  Maine,  250, 

Farrow  v.  Barker,  3  B.  Monroe,  217, 

Faulkener  v.  Waters,  11  Pick.  473, 

Fellows  V.  Dickens,  5  Louisiana  Annual,  131, 

■ V.  Miller,  8  Blackford,  231, 

Felton  V.  Wadsworth,  7  Cusliiug,  587, 
Fettyplace  v.  Dutch,  13  Pick.  388, 
Field  V.  Jones,  11  Georgia,  413, 
First  t'.  Miller,  4  Bibb,  311, 
Fisher  v.  Bartlett,  8  Maine,  122, 

V.  Consequa,  2  Washington,  C.  C.  382, 

V.  Vose,  3  Robinson,  La.  457, 

Fisk  V.  Herrick,  6  Mass.  271, 
Fitch  V.  Rogers,  7  Vermont,  403, 

V.  Ross,  4  Sergeant  &  Rawle,  557, 

V.  Waite,  5  Conn.  117, 

Fitchett  V.  Dolbee,  3  Harrington,  267, 
Fitzgerald,  In  re,  2  Caines,  318, 

V.  Caldwell,  2  Dallas,  215,      . 

V. ,  1  Yeates,  274, 

V. ,  4  Dallas,  251, 

Flanagan  v.  Gilchrist,  8  Alabama,  620, 
Fleming  v.  Burge,  6  Alabama,  373, 
Flower  v.  Griffith's  Heirs,  12  Louisiana,  345, 

V.  Parker,  3  Mason,  247, 

Ford  I'.  Ilurd,  4  Smedes  &  Marshall,  683, 

V.  Wilson,  Tappan,  235, 

V.  Woodward,  2  Smedes  &  Marshall,  260, 

Foss  V.  Stewart,  14  Maine,  312, 
Foster's  Case,  2  Story,  131, 

0 


.       538 

140 

.       137 

785 

219,  394 

489 

245, 480 

356,  357 

51,  385 

226,  400 

.       559 

388 

.       396 

70,  72,  218,  260,  425,  432 

.     468,471 


783,  786 
781,  785 
217,  264 

314 
489,491 

225 

.       397 

361,  363 

332 


680, 


681,  725 
722 
723 

.  161 
143 
105 
731 

122,  737 
403 

122,  714 
187 

226,  400 


XXVI 


INDEX    TO    THE    CASES    CITED. 


Foster  v.  Jones,  1  M'Cord,  116,      ..... 

V. ,  15  Mass.  185, 

Foster  v.  Sinkler,  4  Mass.  450,        . 

V.  Sweeny,  14  Sergeant  &  Rawle,  386, 

i\  Walker,  2  Alabama,  177,  .  .  .570, 

V.  White,  9  Porter,  221,  .  .  570,  573,  614, 

Fowble  V.  Walker,  4  Ohio,  64,  .... 

Fowles  V.  Pindar,  19  Maine,  420,         . 

Franklin  v.  Ward,  3  Mason,  136, 

Franklin  Fire  Ins.  Co.  v.  West,  8  Watts  &  Sergeant,  350,         221, 

Frazier  v.  Wilcox,  4  Robinson,  La.  517, 

Freeman  v.  Grist,  1  Devereux  &  Battle,  217, 

French  i;.  Stanley,  21  Maine,  512,  .  .  193,194, 

Frost  V.  Cook,  7  Howard,  Mi.  357,       . 

Frothingham  v.  Haley,  3  Mass.  68, 

Fuller  V.  Holden,  4  Mass.  498,  .... 

FuUerton  r.  Mack,  2  Aikens,  415,  .... 

Fulton  V.  Heaton,  1  Bai-bour,  Sup.  Ct.  552, 


715 

632,  727 

572 

765 
673,  614 
743,  744 

202 
.       346 

640 
694, 695 
220,  717 

260 
253,  274 
.       134 

532 
274,  357 

191 
.       180 


G. 

Gaffney  v.  Bradford,  2  Bailey,  441, 

Gager  V.  Y/atson,  11   Conn.  1G8, 

Gallego  V.  Gallego,  2  Brockenbrough,  285, 

Galloway,  In  re,  21  Wendell,  32, 

Gardner  v.  Hart,  2  Richardson,  601, 

Garmon  v.  Barringer,  2  Devereux  &  Battle,  502, 

Garnet  v.  Wimp,  3  B.  Monroe,  360, 

Garretson  v.  Zacharie,  8  Martin,  N.  S.  481, 

Gary  v.  McCown,  6  Alabama,  370, 

Gesquet  v.  Johnson,  2  Louisiana,  514, 

Gassett  v.  Grout,  4  Metcalf,  486, 

Gates  V.  Bushnell,  9  Conn,  530, 

Gay  V.  paldwell,  Hardin,  63, 

Gee  V.  Gumming,  2  Haywood,  N.  C.  398, 

V.  Warwick,  2  Haywood,  N.  C.  354, 

V. ,  2  Haywood,  N.  C.  358, 


Georgia  Ins.  &  Trust  Co.  v.  Oliver,  1  Georgia 

Gibbs  V.  Chase,  10  Mass.  128, 

Gilman  v.  Stetson,  16  Maine,  124, 

Gilmer  i>.  Wier,  8  Alabama,  72, 

Glanton  v.  Griggs,  5  Georgia,  424, 

Glassell  v.  Thomas,  3  Leigh,  113, 

Glenn  v.  Gill,  2  Maryland,  1, 


37, 


11 


591 

.       641 

723 

:       100 

185 

7,  118,  114 

180 

.       160 

198 

.       239 

476 

218,  260 

208,  215 

.       697 

467 

661, 697 

'687 

190,  269 

216 

.       178 

750 

702 

489 


I^'DEX    TO    THE    CASES    CITED. 


XXVll 


Goore  v.  McDaniel,  1  M'Cord,  480,       . 
Gordon  v.  Coolidge,  1  Sumner,  537, 

• V.  Jenney,  16  Mass.  465, 

r.  Johnson,  4  Louisiana,  304, 

Gore  V.  Clisby,  8  Pick.  555, 
Goss  V.  Gowing,  5  Eichai-dson,  47  7, 
Gower  V.  Stevens,  19  Maine,  92, 
Gracy  v.  Coates,  2  M'Cord,  224, 
Graham  v.  Bradbur}',  7  Missouri,  281, 

V.  Burckhalter,  2  Louisiana  Annual,  415, 

V.  Moore,  7  B.  Monroe,  53,     . 

v.  Buff,  8  Alabama,  171, 

Graighle  v.  Notnagel,  Peters,  C.  C.  245, 
Grant  v.  Deuel,  3  Robinson,  La.  17, 

V.  Shaw,  16  Mass.  341, 

Graves  v.  Walker,  21  Pick.  160,     . 
Gray  v.  Badgett,  5  Arkansas,  16, 

V.  Henby,  1  Smedes  &  Marshall,  598, 

V.  Perkins,  12  Smedes  &  Marshall,  622, 

Green  v.  Doughty,  6  Xew  Hamp.  572, 

V.  Nelson,  12  Metcalf,  567, 

Greenleaf  t?.  Perrin,  8  Xew  Hamp.  273, 

Greiner  v.  Prendergast,  3  Louisiana  Annual,  376, 

Gridley  v.  Harraden,  14  Mass.  496, 

Grissom  v.  Reynolds,  1  Howard,  ]Mi.  570, 

Griswold  v.  Plumb,  13  Mass.  298, 

Groat  V.  Gillespie,  25  Wendell,  383, 

Grosvenor  v.  Gold,  9  Mass.  209,      . 

Gruer  v.  O'Daniel,  1  Binney,  349,       . 

Guild  v.  Holbrook,  11  Pick.  101, 


221,  224 

.     675,  676 

256,  341, 389 

304 

418,  420,  425,  429 

77,  111 

390,  391 

6  78 

379 

140 

.       525 

113 

240 

157 

437,  499,  516,  535 
673 
704 
642 
303 
608 
710 
416,  522 
47 
627 
733 
346 
172 
219 
84 
425,  434',  537 


H. 


Haffey  v.  Miller,  6  Grattan,  454, 
Hagan  v.  Lucas,  10  Peters,  400, 
Haggart  v.  Morgan,  1  Selden,  422, 
Hagood  v.  Hunter,  1  M'Cord,  511, 
HaFght  V.  Bergh,  3  Green,  183, 
Halbert  v.  Stinson,  6  Blackford,  398, 
Hale  V.  Huntley,  21  Vermont,  147, 
Hall  1-.  Page,  4  Georgia,  428, 
Halsey  r.  Whitney,  4  3Lison,  206, 
Hamilton  r.  Knight,  1  Blackford,  25, 
Handy  v.  Dobbin,  12  Johnson,  220, 


692 
303 
86 
109 
101 
642 
244 
519 
237 
115 
237 


XXVIU 


INDEX    TO    THE    CASES    CITED. 


Ilanna's  Syndics  v.  Lauring,  10  Martin,  5G8, 
Hanness  v.  Smith,  1  Zabriskie,  495,     . 
Hansford  v.  Perrin,  G  B.  Monroe,  595, 
Harlow  v.  Becktle,  1  Blackford,  237, 
Harmon  v.  Bircliard,  8  Blackford,  418, 
Harper  v.  Bell,  2  Bibb,  221,     . 

. V.  Miller,  4  Iredell,  34, 

Ilarrell  v.  Whitman,  19  Alabama,  135, 
Harris  v.  Aiken,  3  Pick.  1 , 

. V.  Dennie,  3  Peters,  292, 

Hartford  v.  Jackson,  11  New  Ilamp.  145, 
Harvey  v.  Grimes,  8  Martin,  395, 
Hathaway  v.  Russell,  IG  Mass.  473, 
Hatry  v.  Shuman,  13  Missouri,  547,      . 
Haven  v.  Low,  2  New  Ilamp.  13, 

. V.  Snow,  14  Pick.  28, 

V.  Wentworth,  2  New  Hamp.  93, 

Havis  V.  Trapp,  2  Nott  &  M'Cord,  130, 
Hawes  v.  Langton,  8  Pick.  G7, 

V.  Waltham,  18  Pick.  451, 

Hawthorn  v.  City  of  St.  Louis,  11  Missouri,  5 
Hayden  v.  Sample,  10  Missouri,  215,     . 
Haynes  v.  Small,  22  INIaine,  14, 
Hazard  v.  Agricultural  Bank,  1 1  Robinson,  La 

V.  Franklin,  2  Alabama,  349, 

. V.  Jordan,  12  Alabama,  180, 

Hazcltinc  v.  Page,  4  Vermont,  49, 

Hazen  v.  Emerson,  9  Pick.  144, 

Hearn  v.  Crutcher,  4  Yerger,  4G1, 

Heath  V.  Lent,  1  California,  410, 

HcfFernan  v.  Grymes,  2  Leigh,  512, 

Ilemmenway  v.  Wheeler,  14  Pick.  408, 

Henderson  v.  Henderson,  5  Cranch,  C.  C.  4-69 

Hepp  I'.  Glover,  15  Louisiana,  461, 

Ilerndon  r.  Forney,  4  Alabama,  243, 

Hibbs  V.  Blair,  14  Penn.  State,  413, 

Hill  V.  Chatfield,  4  Louisiana  Annual,  5G2, 

V.  Child,  3  Devereux,  2C5, 

r.  Ilunnewell,  1  Pick.  192, 

t'.  Rushing,  4  Alabama,  212, 

Hinckley  v.  AVilliams,  1  Gushing,  400, 
Ilinkle  v.  Currin,  2  Humphreys,  137, 
Hinsdill  v.  Saflbrd,  11  Vermont,  309, 
Hitchcock  I".  Egerton,  8  Vermont,  202, 


32 


716 

.       289 

.    306,  309 

.       406 

732,  738,  741 

291 

202 

413,416,  522,  525 

652 

.       245 

238 

221 

)53,  555,  704,  709 

.       379 

.     238,  519 

215,  217 

.     41G,  522 

373 

655,  6G6, 669 

559,  565 

497 

158,  171,  764 

.     194, 198 

97 

692 

63,  64 

604 

664,697 

453 

.       174 

717 

249,  257,  394 

99 

.       238 

152 

.       147 

47 

.       260 

789 

15G,  161,  162 

442 

.       697 

588 

425,  432 


INDEX    TO    THE    CASES    CITED. 


XXIX 


Ilitt  V.  Lacev,  3  Alabama,  104,        . 

636,  724, 

727 

Hodskiii  V.  Cox,  7  Cusbin<r,  471, 

. 

343 

Holbrook  v.  Baker,  5  Maine,  309, 

.     238, 

519 

Hollister  v.  Goodale,  8  Conn.  332, 

249 

250 

Holmes  v.  Barclay,  4  Louisiana  xVnnual,  63, 

. 

47 

V.  Remsen,  20  Jobnson,  229,     . 

. 

727 

Homan  v.  Brinckerboff,  1  Deuio,  184, 

. 

121 

Hooper  v.  Hills,  9  Pick.  435,     .... 

. 

507 

Hopkins  v.  Eay,  1  Metcalf,  79,       . 

.     425, 

430 

Horn  V.  Bayard,  11  Eobinson,  La.  259, 

157,  170 

175 

Hosbaw  V.  Hosbaw,  8  Blackford,  258, 

168 

Hotcbkiss  V.  McVickar,  12  Jobnson,  403, 

. 

269 

Hougbton  V.  Eustis,  5  Law  Reporter,  505, 

.     226, 

400 

Houston  V.  Belcber,  12  Smedes  &  Marsball,  514, 

122,  129, 

131 

Hovey  v.  Crane,  12  Pick.  167, 

667 

I'.  Wait,  17  Pick.  196, 

215, 

216 

How  r.  Field,  5  Mass.  390, 

.     418, 

419 

Howard  v.  Card,  6  Maine,  353, 

. 

520 

V.  Daniels,  2  New  Hamp.  137, 

. 

232 

V.  Smitb,  12  Pick.  202, 

• 

344 

V.  Wbittemore,  9  New  Hamp.  134, 

. 

334 

Howell  V.  Freeman,  3  Mass.  121, 

. 

630 

Hoy  V.  Brown,  1  Harrison,  157,      . 

. 

63 

Hoy t  v.  Swift,  13  Vermont,  419, 

416, 

522 

Hucbeson  v.  Ross,  2  A.  K.  Marsball,  349, 

.     120, 

126 

Hudson  V.  Hunt,  5  New  Hamp.  538, 

520, 

553 

Huff  V.  Mills,  7  Yerger,  42,             .            .             . 

.     596, 

636 

Hugg  V.  Bootb,  2  Iredell,  282, 

525, 

526 

Hugbes  V.  Lapice,  5  Smedes  &  Marsball,  451, 

. 

207 

V.  Martin,  1  Arkansas,  3S6, 

. 

106 

HuU  V.  Blake,  13  Mass.  153, 

. 

729 

Humpbrey  v.  Barns,  Croke,  Eliz.  691, 

• 

741 

Humpbreys  v.  Cobb,  22  Maine,  380, 

.     343, 

344 

r  [Mattbc w   1 1  Illinois  471 

^ 

55 

Hunt  V.  Norris,  4  Martin,  532, 

4S 

,  50 

V.  Stepbens,  3  Iredell,  ^65, 

247, 

489 

Huntington  v.  Blaisdell,  2  New  Hamp.  317, 

249,  254, 

269 

Ilurd  &  Selden,  In  re,  9  Wendell,  465, 

98 

Ilurlburt  r.  Hicks,  17  Vermont,  193, 

• 

482 

Hutcbins  v.  Brown,  4  Harris  &  McHenry,  498, 

• 

211 

n.       T7iT*Ti-in         1    Q      "\7'/-kViTV\/-irTf        P\ /i   1 

589 

1"    TTmvloT    0  ^^ormont    '^95                     ■ 

416,  522, 

572 

)•      ^y^t-^rci^ct       1     N'oTTT    TT:in-iri     ACi^  . 

. 

509 

Hutcbinson  v.  Eddy,  29  Maine,  91,       . 

*                           * 

742 

XXX 


INDEX   TO    THE    CASES    CITED. 


Ilutchinson  v.  Lamb,  Bi-ayton,  234, 

V.  Parkhurst,  1  Aikens,  258, 

Hynson  v.  Taylor,  3  Arkansas,  552, 


47 

342 

47 


Ilsley  V.  Nichols,  12  Pick.  270, 

Ingraliam  v.  Phillips,  1  Day,  117, 

Irish  V.  "Wright,  12  Robinson,  La.  563, 

Irvine  v.  Lumberman's  Bank,  2  Watts  &  Serg.  190, 

i\  Scobee,  5  Littell,  70, 

Ives  V.  Bartholomew,  9  Conn.  309, 
-V.  Hamlin,  5  Gushing,  534, 


.   191 

226,400 
47 
722 
.  209 
757,  758 
.   349 


J. 

Jackson  v.  Bank  U.  S.,  10  Penn.  State,  61, 

V.  Stanley,  2  Alabama,  326,    . 

V.  Walsworth,  1  Johns.  Cases,  372, 

V.  "Warwick,  17  Louisiana,  436, 

Jacoby  v.  Gogell,  5  Sergeant  &  Kawle,  450, 
Jaquette's  Adm'r  v.  Palmer,  2  Harrington,  144, 
Jeffery  v.  Wooley,  5  Halsted,  123, 
Jenney  v.  Delesdernier,  20  Maine,  183, 

■ V.  Rodman,  16  Mass.  464,  . 

Jewel  v.  Howe,  3  "Watts,  144,  . 
Jewett  f.  Bacon,  6  Mass.  60, 

r.  Torrey,  11  Mass.  219, 

Johns  V.  Church,  12  Pick.  557,       . 

V.  Field,  5  Alabama,  484, 

Johnson  v.  Day,  17  Pick.  106, 

V.  Edson,  2  Aikens,  299, 

V.  Hale,  3  Stewart  &  Porter,  331, 

r-  V.  King,  6  Humphreys,  233,    . 

v.  Thayer,  17  Maine,  401, 

Jones  V.  Anderson,  7  Leigh,  308, 

V.  Bradner,  10  Barbour,  Sup.  Ct.  193, 

1'.  Gilbert,  13  Conn.  507, 

r.  (lorham,  2  Mass.  375, 

V.  Howell,  16  Alabama,  695, 

r.  Jones,  1  Bland,  443, 

1'.  Xorris,  2  Alabama,  526, 

r.  Pope,  6  Alabama,  154,      . 

Jordan  v.  Gallup,  16  Conn.  536, 


459 

.  135, 

146,384 

98 

.   139 

59,  107 

.   488 

63 

.   332 

349 

109 

552, 

699,  700 
.   349 

190, 

359,  360 
743,  744 

204, 

210,  217 
333,  383 

110 
558, 561 

617 
.   133 

239 
360',  362 

492 
.   676 
245, 486 
.   425 

117 
269,  274 

INDEX   TO    THE    CASES    CITED. 


XXXI 


Kalin  V.  Herman,  3  Georgia,  26G,  . 
Kane  v.  Pilcher,  7  B.  Monroe,  651, 
Kanonse  v.  Dormedy,  3  Denio,  5G7, 
Kelly  V.  Bowman,  12  Pick.  383, 

v.  Dexter,  15  Vermont,  310, 

Kennedy  v.  Baillie,  3  Yeates,  55, 

v.  Dillon,  1  A.  K.  Marshall,  354, 

Kennon  v.  Ficklin,  G  B.  Monroe,  414, 
Kergin  v.  Dawson,  6  Illinois  (1  Oilman),  8G, 
Kidd  V.  Shepherd,  4  Mass.  238, 

Kidder  v.  Packard,  13  Mass.  80,     . 
Killsa  V.  Lermond,  6  Maine,  116, 
Kimball  v.  Gay,  16  Vermont,  131, 

r.  Plant,  14  Louisiana,  511,     . 

Kincaid  v.  Xeal,  3  M'Cord,  201,  . 
King  V.  Moore,  6  Alabama,  160, 

r.  Murphey,  1  Stewart,  228, 

Kingsland  v.  Worsham,  15  Missouri,  650, 
Kirksey  v.  Dubose,  19  Alabama,  43, 

V.  Jones,  7  Alabama,  622, 

Kittredge  v.  AVarren,  14  Xew  Hamp.  509, 
Knap  V.  Sprague,  9  Mass.  258, 

Knight  V.  Gorham,  4  Maine,  492,  . 
Kyle  V.  Connelly,  3  Leigh,  719, 


132 

. 

.   303 

294 

649,  654, 

655,  666,  673 

322,  324,  351 

84 

118 

.   261 

520,  670,  G71 

.   631 

556 

727 

589 

582,  592,  717 

771 

.   488 

616 

70 

180 

154,  155, 

156,  177,  766 

.  226,400 

.   266, 

322,  327,  390 

, 

508 

•     •     • 

.   133 

L. 

Ladd  V.  Xorth,  2  Mass.  514, 
Lamb  v.  Franklin  Man.  Co.,  18  ISIaine,  187,     . 
Lambard  v.  Pike,  33  ISIaine,  141,    . 
Lambeth  v.  Tiirnbull,  5  Eobinson,  La.  264, 
Lane  v.  Jackson,  5  Mass.  157, 

r.  XoweU,  15  Maine,  86, 

Langdon  v.  Lochett,  6  Alabama,  727, 

Lasloy  v.  Sisloif,  7  Howard,  Mi.  157,    . 

Lathrop  v.  Cook,  14  Maine,  414,     . 

Lawlin  v.  Clay,  4  Littell,  283,  . 

Lawrence  v.  Featherston,  10  Smedes  &  ISIarshall,  345 

Layman  c.  Beam,  6  Wharton,  181, 

Learned  v.  Bryant,  13  Mass.  224,  . 

Lee  V.  Palmer,  18  Louisiana,  405, 


. 

269 

669 

670 

. 

232 

. 

238 

, 

249 

. 

436 

489 

671 

. 

359 

405 

,    .      .141 

145 

205 

. 

357 

•      •      • 

717 

XXXll 


INDEX    TO    THE    CASES    CITED. 


Lee  V.  Peters,  1  Smedcs  &  Marshall,  503,  . 
Leefe  v.  Walker,  18  Louisiana,  1, 
Legro  V.  Staples,  16  Maine,  252,     . 
Lenox  V.  Rowland,  3  Caines,  323, 

V. ,  3  Caines,  257, 

Levy  V.  Levy,  11  Louisiana,  581, 
Lewis  V.  Whittcmore,  5  New  Ilamp.  3G4,  . 
Libby  v.  Ilodgdon,  9  New  Hamp.  394, 
Lindner  v.  Aaron,  5  Howard,  Mi.  581, 
•  Lindsay  v.  Larned,  17  Mass.  190, 
Little  V.  Hale,  11  Vermont,  482,     . 
Littlefield  v.  Smith,  17  Maine,  327,      . 
Littlejohn  v.  Wilcox,  2  Louisiana  Annual,  G20, 
Livengood  i\  Shaw,  10  Missouri,  273, 
Locke  V.  Tippctts,  7  Mass.  149, 
Loftin  V.  Shackleford,  17  Alabama,  455, 
Louderman  v.  AYilson,  2  Harris  &  Johnson,  379, 
Love  V.  Fairfield,  10  Illinois  (5  Gilman)  303, 

v.  Harper,  4  Humphreys,  113, 

r.  Kidwell,  4  Blackford,  553, 

Lovejoy  v.  Hutchins,  23  Maine,  272, 
Lovely  v.  Caldwell,  4  Alabama,  G84,    . 
Lowe  V.  Derrick,  9  Porter,  415,      . 
Lowry  V.  Cady,  4  Vermont,  504, 

V.  Lumberman's  Bank,  2  Watts  &  Sergeant,  210, 

r.  Stevens,  6  Vermont,  113, 

V.  Stowe,  7  Porter,  483,       .  .  .  . 

V.  Walker,  5  Vermont,  181,     . 


Ludden  v.  Leavitt,  9  INIass.  104,     . 
Ludlow  V.  Bingham,  4  Dallas,  47, 
Lupton  V.  Cutter,  8  Pick.  298, 
Lyle  t'.  Barker,  5  Binney,  457, 

V.  Foreman,  1  Dallas,  480, 

Lyman  v.  Lyman,  11  IMass.  317, 

V.  Parker,  33  Maine,  31,     . 

Lyndon  r.  Gorham,  1  Gallison,  3G7, 
Lyon  r.  Rood,  12  Vermont,  233,  . 
r.  Sanford,  5  Conn.  544,  . 


. 

113 

. 

.   526 

. 

511 

. 

49 

. 

368 

, 

56,  105 

. 

188 

, 

97 

. 

135, 384 

. 

.   757 

. 

588 

. 

.   616 

, 

157,  171 

. 

107,  379 

. 

633,  700 

.   711 

. 

528 

. 

.   130 

. 

260 

. 

161, 163 

275, 

277,  288 

. 

.   624 

. 

145 

, 

.   349 

. 

729 

.   356 

104,  117 

131,  145 

.   341 

320,  322 

338,  341 

576, 590 

425, 

429,  524 

, 

238, 519 

, 

84 

. 

.   349 

659 

, 

.   559 

. 

249,  255 

, 

.   233 

M. 


McAllister  v.  Brooks,  22  INIaine,  80, 
IMcBride  r.  Floyd,  2  Bailey,  209, 
McCaffrey  i-.  Moore,  18  Pick.  492, 


572,  728,  746 

221,  771 

630 


INDEX   TO   THE   CASES    CITED. 


XXXlll 


McCarty  v.  Emlen,  2  Dallas,  277 ;  2  Yeates,  190, 
McCartney  v.  Brancli  Bank,  3  Alabama,  709, 
McCluny  V.  Jackson,  6  Grattan,  96,     . 
McCoombe  r.  Dunch,  2  Dallas,  73, 
McCoy  v.  Williams,  6  Illinois  (1  Oilman)  584, 
McCreary  v.  Topper,  10  Penn.  State,  419, 
McCullougb  V.  Grishobber,  4  Watts  &  Sergeant, 

V.  Walton,  11  Alabama,  492, 

McDanlel  r.  Huglies,  3  East,  367, 

McDonald  v.  Forsytli,  13  Missouri,  549,     . 

Mclntyre  v.  White,  5  Howard,  Mi.  298, 

McKenzie  v.  Buclian,  1  Nott  &  M'Cord,  205, 

McMechan  v.  Griffing,  9  Pick.  537,      . 

McMeekin  v.  The  State,  4  English,  553,     . 

McMenomy  v.  Ferrers,  3  Johnson,  71, 

McMlnn  r.'Hall,  2  Tennessee,  328, 

McQueen  v.  Middletown  Man.  Co.,  16  Johnson,  5 

McRae  v.  McLean,  3  Porter,  138, 

Mackey  v.  Hodgson,  9  Penn.  State,  468, 

Maker  v.  Brown,  2  Louisiana,  492, 

Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438, 

Malone  v.  Samuel,  3  A.  K.  Marshall,  350, 

Manderville  v.  Welch,  5  Wheaton,  277, 

Mann  i-.  Buford,  3  Alabama,  312, 

Marion  v.  Faxon,  20  Conn.  486, 

Maris  v.  Schermerhorn,  3  Wharton,  13,      . 

Marshall  f.  White,  8  Porter,  551, 

Marston  v.  Carr,  16  Alabama,  325, 

Martin  v.  Br.  Bk.  of  Alabama,  14  Louisiana,  415, 

V.  Dryden,  6  Illinois  (1  Oilman)  188, 

Slarty,  In  re,  3  Barbour,  Sup.  Ct.  229,      > 
Marvin  v.  Hawley,  9  Missouri,  382, 
Mason  v.  Anderson,  3  Monroe,  293,      . 

V.  Briggs,  16  Mass.  453, 

V.  McCampbell,  2  Arkansas,  506, 

Massey  r.  WaUcer,  8  Alabama,  167, 
Mattliews  v.  Houghton,  11  Maine,  377, 
Mathis  V.  Clark,  2  Mills'  Const.  Ct.  456, 
Mayhew  v.  Scott,  1-0  Pick.  54, 
Meacham  v.  M'Corbett,  2  Metcalf,  352, 
Meade  v.  Smith,  16  Conn.  346, 
Means  v.  Osgood,  7  Maine,  146, 
Mears  v.  Winslow,  1  Smedes  &  Marshall,  Ch'y 


01, 


449, 


561,  636,  724 

104 

774 

99 

703 

470 

757,  761 

.     156, 177 

729,  752 

47 

.       130 

.    127,  142 

234 

497 

.       623 

.    527,  549 

94 

,    299,  303 

680,  681 

506 

416,  425,  426,  522 
209 
.       623 
417,496,  676 
.       242 
201 
47,  65 
425 
97 
218,  224 
49 
486 
196,  209 
345 
670 
386 
729 
G98 
.       503 
540,  677,  692 
190 
216 
218,  260 


25,43 


XXXIV 


INDEX    TO    THE    CASES    CITED. 


Meggs  i\  Shaffer,  Hardin,  G5, 
Meldrum  v.  Snow,  9  Pick.  441, 
Melton  V.  Troutman,  15  Alabama,  535, 
Mense  v.  Osbern,  5  Missouri,  544,    . 
Meriam  v.  Ptundlett,  13  Pick.  511, 
Merrill  v.  Curtis,  18  Maine,  272, 

V.  Sawyer,  8  Pick.  397,     . 

Mersereau  v.  Norton,  15  Johnson,  179, 
Middlebrook  v.  Ames,  5  Stewart  &  Porter,  158 
"  Miller  v.  Adsit,  16  Wendell,  335,      . 

V.  Baker,  1  Metcalf,  27,      . 

• V.  Clark,  8  Pick.  412,      . 

V.  McMillan,  4  Alabama,  527,     , 

V.  Richardson,  1  Missouri,  310 

V.  Shackleford,  4  Dana,  264, 

Mills  V.  Camp,  14  Conn.  219,    . 

■ V.  Stewart,  12  Alabama,  90, 

Mims  V.  Parker,  1-  Alabama,  421,     . 
Minga  r.  ZoIlIcoiTer,  1  Iredell,  270,       , 
Mitchel  v.  Merrill,  2  Blackford,  87,  . 
Mitchell  v.  Hinman,  8  Wendell,  667, 
Mobloy  r.  Lonbat,  7  Howard,  Mi.  318, 
Mock  V.  King,  15  Alabama,  66,    . 
Monroe  v.  Cutter,  9  Dana,  93, 
]\Ioon  V.  Hawks,  2  Aikens,  390,    . 
Mooncy  V.  Kavanagh,  4  Maine,  277, 
IMoore  v.  Angiolette,  12  Martin,  532, 

r.  Graves,  3  New  Hamp.  408, 

■ r.  Greene,  4  Humphreys,  299, 

V.  Pillow,  3  Humphreys,  448, 

V.  Spackman,  12  Sergeant  &  Kawle,  28 

Moreland  v.  Ruffin,  Minor,  18, 
Morgan  v.  Furst,  4  Martin,  N.  S.  116, 
Morrill  r.  Brown,  15  Pick.  173, 
Morris  v.  Ludlam,  2  II.  Black.  362,      . 
Llorrison  v.  Blodgett,  8  New  Ilamp.  238, 
!Morse  v.  Bctton,  2  New  Hamp.  184,     . 
Lloser  V.  Maberi-y,  7  Watts,  12, 
Mott  V.  Smith,  2  Cranch,  C.  C.  33, 
Moulton  V.  Chadbornc,  31  Maine,  152, 

I'.  Chanin,  28  Maine,  505, 

Moycr  i'.  Lobi-ngeir,  4  Watts,  390,   . 
Murrell  v.  Johnson,  3  Hill,  S.  C.  12, 


. 

377 

, 

239 

767 

. 

379 

730 

192, 

339 

257 

242 

.   73, 

374 

, 

338 

190 

349, 

785 

. 

197 

417,  447, 

563 

.  202, 

203 

. 

257 

.  727, 

749 

. 

527 

. 

47 

305 

.  320 

338 

. 

561 

. 

463 

. 

295 

. 

241 

. 

788 

375 

, 

265 

. 

596 

425 

. 

727 

, 

212 

, 

313 

427 

752 

349 

,  355 

. 

279 

698 

756 

315 

349,  356 

,  361 

, 

733 

.  489 

,  667 

INDEX    TO    THE    CASES    CITED. 


XXXV 


Meyei-3  v.  Beeman,  9  Iredell,  116, 

V.  Perry,  1  Louisiana  Annual,  3i 

V.  Urich,  1  Binney,  25, 


594 
292 
733 


N. 


Nailor  V.  French,  4  Yeates,  241,     . 
Nancarrow  v.  Young,  6  Martin,  662, 
Nathan  v.  Giles,  5  Taunton,  558,  576, 
Naylor  v.  Dennle,  8  Pick.  198, 
Neally  v.  Ambrose,  21  Pick.  185, 
Neilson  v.  Scott,  1  Rice's  Digest  of  S.  C.  Rep. 
Nesmith  v.  Drum,  8  Watts  &  Sergeant,  9, 
Newell  V.  Adams,  1  D.  Cbipman,  346, 
New  England  M.  I.  Co.  v.  Chandler,  16  Mass, 
New  Hamp.  I.  F.  Co.  v.  Piatt,  5  New  Hamp. 
Newton  V.  Adams,  4  Vermont,  437, 
Nichols  V.  Patten,  18  Maine,  231, 
Norris  v.  Bridgham,  14  Maine,  429, 

V.  Hall,  18  Maine,  332, 

Norton  v.  The  People,  8  Cowen,  137,    . 
Nugent  V.  Opdyke,  9  Robinson,  La.  453, 
Nutter  V.  Connett,  3  B.  Monroe,  199, 


. 

' 

298 

• 

220, 

516,  720 

.   256 

657 

80, 

• 

.   667 

511 

.   572 

.  275, 

453 

193, 

• 

425,  435 
191,  255 
252,  388 

361 
683,  729 

338 

• 

614, 

646,  743 
218,  260 

o. 

Odiorne  v.  Colley,  2  New  Hamp.  66,  249,  254,  265,  266,  269, 

Offutt  V.  Edwards,  9  Robinson,  La.  90,  .  76,  157,  170, 

Ohio  Life  Ins.  &  Tr.  Co.  v.  Urbana  Ins.  Co.,  13  Ohio,  220, 
Ohors  V.  Hill,  3  M'Cord,  338, 


Oldham  v.  Ledbetter,  1  Howard,  Mi.  43, 
Oliver  V.  Gwin,  17  Louisiana,  28, 

r.  Lake,  3  Louisiana  Annual,  78, 

V.  Smith,  5  Mass.  183, 

Ormond  v.  Moye,  11  Iredell,  564, 

Ormsby  v.  Anson,  21  Maine,  23, 

Orr  V.  McBryde,  2  Carolina  Law  Repository,  257, 

Overton  v.  Hill,  1  Murphey,  47, 

Owen  V.  Estes,  5  Mass.  330, 

O wings  I'.  Norwood,  2  Harris  &  Johnson,  96, 

Oystead  v.  Shed,  12  Mass.  506, 


570, 


324,  327 

171,  375 

216 

243 

733,  745 

292 

501 

.   491 

594 

.   652 

246, 488 

.   486 

502 

219 

243 


XXXVl 


INDEX   TO    THE    CASES    CITED. 


Paddock  r.  Palmer,  19  A^ormont,  581, 
Page  V.  Ford,  2  Smedes  &  Marshall,  266, 

V.  Long,  4  B.  Monroe,  121, 

• r.  Thrall,  11  Vermont,  230, 

Palhles  V.  Roux,  14  Louisiana,  82, 
Paine's  Lessee  v.  Mooreland,  15  Ohio,  435, 
Palmer  v.  Ballard,  3  Stewart,  326, 

V.  Hooke,  1  Ld.  Raymond,  727, 

Pancake  v.  Harris,  10  Sergeant  &  Rawle,  109, 
Paramore  v.  Pain,  Croke,  Eliz.  598, 
Parker  v.  Danforth,  16  Mass.  299, 

V.  Farr,  2  Browne,  331, 

V.  Gnillow,  10  New  Hamp.  103, 

Parks  V.  Cushman,  9  Vermont,  320, 

Parsons  v.  Strong,  13  Vermont,  235, 

Paul  V.  Paul,  10  New  Hamp.  117, 

Pawley  v.  Gaines,  1  Tennessee,  208, 

Paxton  V.  Steckel,  2  Penn.  State,  93, 

Payne  v.  Mayor,  &c.  of  Mobile,  3  .Vlabama,  333, 

V.  Snell,  3  Missouri,  409, 

Peace  v.  Jones,  3  Murphey,  256, 
Peacock  v.  AVildes,  3  Halstead,  179, 
Peck  V.  Webber,  7  Howard,  Mi.  658, 
Peircc  v.  Partridge,  3  Mctcalf,  44, 
Pellman  v.  Hart,  1  Penn.  State,  263, 
Pcnnell  v.  Grubb,  13  Penn.  State,  552, 
Penniman  r.  Ruggles,  6  Mass.  166,       . 
Penobscot  Boom  Corp.  v.  "Wilkins,  27  Maine,  345, 
People  V.  Cameron,  7  Illinois  (2  Gilman)  468, 

V.  Hubbard,  24  Wendell,  369, 

Periue  v.  George,  5  Alabama,  644, 

Perkins  v.  Parker,  1  Mass.  117        . 

Perley  v.  Foster,  9  Mass.  112, 

Perrin  i'.  Leverett,  13  Mass.  128, 

Perry  v.  Coates,  9  Mass.  537, 

Pettes  V.  ^larsh,  15  Vermont,  454, 

Pettit  V.  Mercer,  8  B.  Monroe,  51,  151,  153,  160, 

Phelps  V.  Campbell,  1  Pick.  59, 

Phillips  V.  Bridge,  11  ]\Lass.  242, 

V.  Hall,  8  Wendell,  GIO,      . 


41 


169,  17 


31 


.       364 

134 

.       310 

316,  342 

.       292 

409 

737 

724 

716 

752 

554, 555 

220, 222 

.       557 

237,469 

362 

6,  522,  526 

.       486 

190,  194 

622,  692 

291 

.       550 

101 

220,  221 

782 

.       615 

707,  708 

443 

358,  360 

221 

191 

.       676 

729 

338,  341 

231 

425,427 

347 

0,  172,  754 

289 

8,  328,  333 

349 


INDEX    TO    THE    CASES    CITED. 


XXXVII 


Picquet  v.  Swan,  4  IMason,  443, 
Pierce  v.  Jackson,  6  Mass.  242, 

V.  Strickland,  2  Story,  292,     . 

Pierson  v.  Hovey,  1  D.  Chipman,  51,    . 

. V.  AVeller,  3  Mass.  5G4, 

Pillsbury  v.  Small,  19  Maine,  435, 
Piper  V.  Piper,  2  New  Hamp.  439, 
Piscataqua  Bank  v.  Turnley,  1  Miles,  312, 
Pitts  V.  Burroughs,  6  Alabama,  733, 
Planter's  Bank  v.  Byrne,  3  Louisiana  Annual, 

V.  Walker,  3  Smedes  &  Marshall 


Planters  &  Merchants  Bank  v.  Andrews,  8  Por 
Piatt  V.  Brown,  16  Pick.  553, 
Pogue  V.  Joyner,  2  English,  462, 
Pollard  V.  Ross,  5  Mass.  319,     . 
Pomroy  v.  Kingsley,  1  Tyler,  294, 
Poole  V.  Symonds,  1  New  Hamp.  289, 
Pope  V.  Hunter,  13  Louisiana,  306, 
Porter  v.  Earthman,  4  Yerger,  358, 

V.  Hildebrand,  14  Penn.  State,  129, 

Poteet  V.  Boyd,  10  Mssouri,  160,      . 
Powell  V.  Aiken,  18  Louisiana,  321, 
Poydras  v.  Delaware,  13  Louisiana,  98, 
Prentiss  r.  Bliss,  4  Vermont,  513, 
Prescott  V.  Hull,  17  Johnson,  284,     . 

. V.  Parker,  4  Mass.  170, 

Presnall  v.  Mabry,  3  Porter,  105,      . 
Prewitt  r.  Carmichael,  2  Louisiana  Annual,  943 
Price  V.  Bradford,  4  Louisiana,  35, 
Pringle  v.  Black's  Exr's,  2  Dallas,  97, 
Putnam,  Ex  parte,  20  Alabama,  592, 

V.  Hall,  3  Pick.  445, 

Pyle  V.  Cravens,  4  Littell,  1 7, 


687,   . 

,409, 

ter,  404, 


195, 


238,  471,  519,  703 
.  237 
198,  199,  332,  333 
.  322,  324 
453 
.  390 
416,  475,  522 
.   47 
76 
.  140 
202 
97,  131,  145,  716 
191 
.  306 
484 
.  388,  390 
269,  338 
.  139 
260 
.   47 
297 
.  238 
623 
237,  245,  481 
743 
.  640,  680 
525 
.   47 
609 
.   99 
386 
.  216,  784 
405 


Q. 


Quarles  v.  Porter,  12  Missouri,  76, 
Quine  v.  Mayes,  2  Robinson,  La.  510, 


585, 597 
292,  357 


R. 


Rea  V.  Lewis,  Minor,  382, 
Read  v.  Ware,  2  Louisiana  Annual,  498, 
Reagan  v.  Kitchen,  3  Martin,  418,     . 

D 


755 

.       58,  375 

306 


XXXVlll 


INDEX   TO    THE   CASES    CITED. 


Keddiek  v.  Smith,  4  Illinois  (3  Scammon)  451, 

Redus  V.  Woflbrd,  4  Smedes  &  IMarsliall,  579, 

Redwood  v.  Consequa,  2  Browne,  G2, 

Reed  v.  Howard,  2  Metcalf,  36, 

Reidbar  v.  Berger,  8  B.  Monroe,  160, 

Remick  v.  Anderson,  11  New  Hamp.  256, 

Remmington  v.  Cady,  10  Conn.  44,      . 

Reynolds  r.  Bell,  3  Alabama,  57,      . 

Rice  V.  Beers,  1  Rice's  Digest  of  S.  C.  Reports,  75, 

V.  Wilkins,  21  Maine,  558, 

Rich  V.  Bell,  16  Mass.  294, 

V.  Waters,  22  Pick.  563, 

Richards  v.  Allen,  8  Pick.  405,     .... 

V.  Griggs,  16  Missouri,  416, 

Richardson  v.  Whiting,  18  Pick.  530,    . 

Riley  V.  Hirst,  2  Penn.  State,  346,    ... 

Ripley  V.  Severance,  6  Pick.  474, 

Risley  v.  Welles,  5  Conn.  431, 

Rives  V.  Wilborne,  6  Alabama,  46,        .         .        . 

Rix  V.  Elliot,  1  New  Hamp.  184,       . 

Robbins  v.  Bacon,  3  Maine,  346, 

Robeson  v.  Carpenter,  7  Martin,  N.  S.  30, 

Robertson  v.  Forrest,  2  Brevard,  466, 

Robinson  v.  Howard,  7  dishing,  257, 

V.  Mansfield,  13  Pick.  139,     . 

V.  Smith,  2  Stewart,  86,     . 

Roby  V.  Labuzan,  21  Alabama,  60,       . 
Rockefeller  u.  Hoysradt,  2  Hill,  N.  Y.  616, 
Rockwood  V.  Varnum,  17  Pick.  289,     , 
Rodgers  v.  Hendsley,  2  Louisiana,  597,     . 
Rood  V.  Scott,  5  Vermont,  2C3,     .... 
Roosevelt  v.  Kellogg,  20  Johnson,  208,      . 
Root  V.  Monroe,  5  Blackford,  594, 

Ross  V.  Clarke,  1  Dallas,  354, 

V.  McKinney,  2  Rawle,  227, 

Rowell's  Case,  21  "Vermont,  620,      .         .        .         . 

Rundlet  u.  Jordan,  3  Maine,  47, 

Riinlctt  V.  Bell,  5  New  Hamp.  433,  .         .         .         , 

Runyan  v.  INIorgan,  7  Humphreys,  210, 

Russell  V.  Ilinton,  1  IMurphey,  468, 

V.  Lewis,  15  ^lass.  127,      . 

■ V.  Wilson,  18  Louisiana,  367, 


218 


416 


. 

245 

,481 

65 

,  218 

,224 

• 

5 

1,  62 

242 

•  ■  • 

170 

173 
362 
242 
386 
56 

.    , 

282 

,  332 
288 
539 
453 
468 

. 

. 

451 

.    . 

417 

496 

,    , 

418 

509 

. 

. 

418 
303 
553 
618 
728 

B,  225,  248 

260 

360 

485 

190,  328, 

340, 

360 
670 
692 
121 

.   260 

261, 

267 
610 

.  322, 

324, 

350 

81 

126 

• 

247, 

489 
546 

. 

226, 

400 

,425,433, 

522, 

526 

. 

315, 

334 

• 

90, 

113 

698 

.  454, 

663, 

664 
88 

INDEX   TO   THE   CASES    CITED. 


XXXIX 


331, 


Saffaracns  v.  Bennett,  6  Howard,  Mi.  277, 

Saint  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Mssouri,  421, 

Sanders  v.  nu5;hes,  2  Brevard,  495, 

Sanderson  v.  Edwards,  16  Pick.  144, 

Sanford  v.  Bliss,  12  Pick.  116, 

Sargeant  v.  Helmbold,  Harper,  219,     . 

Sargent  v.  Carr,  12  Maine,  396,      . 

Sartin  v.  Weir,  3  Stewart  &  Porter,  421, 

Savage's  Case,  1  Salkeld,  291, 

Sawyer  v.  Mason,  19  Maine,  49, 

Sayward  v.  Drew,  6  Maine,  263,     . 

Scales  V.  Swan,  9  Porter,  163, 

Schacklett  Sc  Glyde's  Appeal,  14  Penn.  State,  326, 

SchatziU  V.  Bolton,  2  M'Cord,  478,       . 

Schlater  v.  Broaddus,  3  Martin,  N.  S.  321, 

Scholefield  v.  Bradlee,  8  Martin,  495, 

Scott  V.  Crane,  1  Conn.  255, 

V.  Hill,  3  Missouri,  88,      . 

Searcy  v.  Platte  County,  10  Missouri,  269, 
Searle  v.  Preston,  33  Maine,  214, 
Sebor  v.  Armstrong,  4  Mass.  206,  . 
Seely  v.  Brown,  14  Pick.  177, 
Senecal  ?;.  Smith,  9  Robinson,  La.  418, 
Sewall  V.  Mattoon,  9  Mass.  535, 
Sewell  V.  Savage,  1  B.  Monroe,  260, 

V.  Sowles,  13  Vermont,  171,     . 

Sharp  V.  Clark,  2  Mass.  91, 
Sharpe  v.  Hunter,  16  Alabama,  765,    . 
Sharpless  v.  Welsh,  4  Dallas,  279, 
Shaver  v.  White,  6  Munford,  110, 
Shaww.  Bunker,  2  Metealf,  376,     . 

. V.  Laugh  ton,  20  Maine,  266, 

Shearer  v.  Handy,  22  Pick.  417,     . 
Sheets  v.  Culver,  14  Louisiana,  449,     . 
Sheldon  v.  Eoot,  16  Pick.  567, 

. V.  Simonds,  Wright,  724, 

Sliephard  v.  Butterfield,  4  Cushing,  425, 
Sherrod  v.  Davis,  17  Alabama,  312,      . 
Shewell  v.  Keen,  2  Wharton,  332, 
Shinn  v.  Zimmerman,  3  Zabriskle,  150, 
Shipp  V.  Davis,  Hardin,  65, 


97, 


388, 


356, 


151 


407 

574,  597,  716 

.     151,  754 

391,  392,  393 

.     677,  692 

47 

.     238,519 

311 

.     724,  729 

357,  360,  363 

541,  550,  692 

..       648 

224 

561 

292 

247 

284 

.       597 

379 

223 

.     649,  673 

789 

157,  754,  757 

281,  288 

.     218,  260 

354 

.     487,  640 

156, 165 

620 

755 

649 

343, 353 

674 

582,  592 

237 

698 

256 

.       381 

.     471,474 

.       640 

109 


xl 


INDEX    TO    THE    CASES    CITED. 


Shove  V.  Dow,  13  Mass.  529, 
Shrewsbury  v.  Pearson,  1  M'Cord,  331, 
Shugart  v.  Orr,  5  Yerger,  192, 
Shumway  v.  Rutter,  8  Pick.  443, 
Sias  V.  Badger,  6  New  Hamp.  393, 
Sibley  v.  Brown,  15  Maine,  185, 

V.  Story,  8  Vermont,  15,       . 

Sickman  v.  Lapsley,  13  Sergeant  &  Rawle,  224, 
Sigourney  v.  Eaton,  14  Pick.  414, 
Silverwood  v.  Bellar,  8  AVharton,  420, 
Simpson  v.  Harry,  1  Devereux  &  Battle,  202, 
Sinclair  v.  Tarbox,  2  New  Ilamp.  135, 
Skillman  v.  Bethany,  2  Martin,  N.  S.  104, 
Sloan  V.  Forse,  11  Missouri,  126, 
Small  V.  Hutchins,  19  Maine,  255, 
Smith  V.  Barker,  10  Maine,  458, 

V.  Bradstrcet,  IG  Pick.  264, 

V.  Brown,  14  New  Hamp.  67, 

V.  Chapman,  6  Porter,  365, 

V.  Cudworth,  24  Pick.  196, 

V.  Gettinger,  3  Georgia,  140, 

V.  Leavitts,  10  Alabama,  92, 

V.  Low,  2  Iredell,  457, 

V.  McMicken,  3  Louisiana  Annual,  319, 

V.  Mitchell,  31  Maine,  287,  . 

V.  People's  Bank,  24  Maine,  185, 

V.  Story,  4  Humphreys,  169, 


316,  322 


151, 


Somerville  v.  Brown,  5  Gill,  399, 

South  Carolina  R.  R.  Co.  v.  McDonald,  5  Georgia,  531 

Spalding  v.  Imlay,  1  Root,  551, 

Spear  ih  Hubbard,  4  Pick.  143, 

V.  King,  6  Smedes  &  Marshall,  276, 

Spencer  v.  BlaisdcU,  4  New  Hamp.  198, 

V.  Williams,  2  Vermont,  209, 

Sprague'v.  Wheatland,  3  Metcalf,  416, 
Stackpole  v.  Newman,  4  Mass.  85, 
Staniols  v.  Raymond,  4  Gushing,  314, 
Stanley  r.  Ogdcn,  2  Root,  259, 
Stanton  v.  Holmes,  4  Day,  87,. 
Staples  V.  Staples,  4  Maine,  532, 
Starr  v.  Moore,  3  McLean,  354, 
State  V.  Berry,  12  Missouri,  376, 

V.  Lawson,  2  English,  391, 

Stebbins  v.  Fitch,  1  Stewart,  180, 


59,  167 


260,  261,  262 

373 

73,  82 

.       189 

200 

182,  189 

324,  340,  347 

.       690 

260 

.       695 

447 

327,  347 

238 

.       404 

320 

.       634 

221 

.       349 

.     527,  716 

.       349 

775 

.       205 

202 

561 

.     354,  362 

.       230 

,  754,  757,  761 

.       598 

96 

.       493 

790 

112,  135,  384 

237 

342, 349 

352 

656, 669 

425 

'47 

99 

417,  486,  496 

219 

.       147 

237 

.       716 


INDEX   TO    THE    CASES    CITED. 


xli 


Steinmetz  r.  Nixon,  3  Yeates,  285, 
Stephen  v.  Thayer,  2  Bay,  272, 
Steuart  v.  West,  1  Harris  &  Johnson,  536, 
Stevens  v.  Briggs,  5  Pick.  177, 

V.  Eames,  2  Foster,  568,     . 

V.  Gwathmey,  9  IMissouri,  636 

V.  Stevens,  1  Ashmead,  190, 

Stickney  v.  Davis,  16  Pick.  19, 
StiUman  v.  Isham,  11  Conn.  124,     . 
Stockton  V.  Hall,  Hardin,  160, 
Stone  V.  Dean,  5  New  Hamp.  502, 

V.  Magruder,  10  Gill  &  Johnson,  383, 

V.  SwiTt,  4  Pick.  389, 

Storey  v.  McNeill,  Harper,  156, 
Strong  V.  Hoyt,  2  Tyler,  208, 
Strout  V.  Bradbury,  5  Maine,  313, 
Stubblefield  v.  Hagerty,  1  Alabama,  38, 
Sturtevant  v.  Robinson,  18  Pick.  175, 
Summers  v.  Glancey,  3  Blackford,  361, 
Sumpter  v.  Wilson,  Smith,  65, 
Suydam  (•.  Huggeford,  23  Pick.  465, 
Swatrer  v.  Pierce,  3  Louisiana  Annual,  43; 
Swan  V.  Polk,  7  jSIissouri,  231, 
Sweeny  ii.  Allen,  1  Penn.  State,  380, 
Swett  V.  Brown,  5  Pick.  178, 
Swisher  i'.  Fitch,  1  Smedes  &  Marshall,  541, 


. 

201 

.   218 

. 

550,  598 

.   241 

. 

347,  348 

671, 

680,  688 

615 

.   190 

, 

462 

.   743 

425 

557,  587 

714 

759 

117,  143 

344 

265,  341 

570 

605,  701 

128 

.   147 

259,  383 

47 

379 

636,  642 

247 

,267,521 

.   602 

Taber  V.  Nye,  12  Pick.  105, 

Taintor  r.  Williams,  7  Conn.  271, 

Talbot  V.  Harding,  10  Missouri,  350 

Talbott  (!.  Tarlton,  5  J.  J.  Marshall,  641, 

Tarbell  v.  Dickinson,  3  Gushing,  345, 

Taylor  v.  Gardner,  2  Washington,  C.  C.  488,  . 

V.  Knox,  1  Dallas,  158,       . 

V.  Mixter,  11  Pick.  341, 

V.  Phelps,  1  Harris  &  Gill,  492,      . 

V.  Ricards,  4  English,  378,        . 

Tazewell's  Ex'rs  v.  Barrett,  4  Henning  &  Munford,  259 
Temple  v.  Cochran,  13  INIissouri,  116,  . 

r.  Hooker,  6  Vermont,  240, 

Templeman  v.  Fauntleroy,  3  Randolph,  434,  . 
Tevis  V.  Hughes,  10  jSIissouri,  380, 

D* 


530 

249,  388,  390 

225 

.  677 
289 

.  706 
85 
231,  232,  233 
727 
376 
68G 
379 
791 

.  68G 
145 


xlii 


INDEX   TO    THE    CASES    CITED. 


Tliatclier  v.  Miller,  11  Mas3.  413,  and  13  Mass.  270, 
Thayer  v.  Hutchinson,  13  Vermont,  504,  . 

V.  Sherman,  12  Mass.  441, 

Thomas  v.  Goodwin,  12  Mass.  140, 

V.  Plojjper,  5  Alabama,  442,     . 

Thompson  v.  In  re,  1  Wendell,  43, 

V.  Allen,  4  Stewart  &  Porter,  184, 

V.  Brown,  17  Pick.  462, 

V.  Marsh,  14  Mass.  269, 

V.  Stevens,  10  Maine,  27, 

V.  Stewart,  3  Conn.  171,      . 

V.  Taylor,  13  Maine,  420, 

V.  Towson,  1  Harris  &  McHenry,  504, 

Thorn  v.  Woodruff,  5  Arkansas,  55, 
Thorndike  v.  DeWolf,  6  Pick.  120, 
Thornhill  v.  Christmas,  11  Robinson,  La.  201, 
Tiernan  v.  Murrali,  1  Robinson,  La.  443, 
Titcomb  V.  Seaver,  4  Maine,  542,   . 
Tomlinson  v.  Warner,  9  Ohio,  103,       . 
Toulmin  v.  Lesesne,  2  Alabama,  359, 
Towlc  V.  Robinson,  15  New  Hamp,  408, 
Train  v.  Wellington,  12  Mass.  495, 
Trembly  v.  Clark,  13  Vermont,  118,    . 
Trowbridge  v.  Means,  5  Arkansas,  135, 
Tubb  V.  Madding,  ]Minor,  129, 
Tucker  v.  Atkinson,  1  Humphreys,  300,    . 

V.  Butts,  6  Georgia,  580, 

V.  Clisby,  12  Pick.  22, 

V.  Marsteller,  1  Cranch,  C.  C.  254,      , 

Tufts  V.  McClintock,  28  Maine,  424, 
Tukey  v.  Smith,  18  Maine,  125, 
Turbill's  Case,  1  Saunders,  67,       . 
Tunstall  v.  Means,  5  Arkansas,  700,     . 
Turner  v.  Armstrong,  9  Yerger,  412, 

V.  Austin,  IG  ]\Iass.  181, 

V.  Fendall,  1  Cranch,  117,  . 

Twining  v.  Foot,  5  Gushing,  512, 
Twombly  o.  ILmnewell,  2  Maine,  221, 
Tyler  v.  Ullnicr,  12  Mass.  163, 
Tyson  v.  Homer,  2  Howard,  Mi.  669, 


'0,  . 

210,  214 

338 

. 

417,496 

509 

. 

704 

.  69,  80,  86 

, 

678,  716 

245 

. 

265,  327 

.  238, 519 

. 

.   456 

557 

. 

.   107 

467 

544, 

545,  563,  627,  630 

247 

. 

.   219 

450 

. 

757,  758 

198 

. 

.   349 

.  329,  390 

, 

635,  639 

640 

. 

737 

.  246,  488 

. 

.   496 

543 

, 

.   622 

188 

. 

,   279 

.  729,  751 

. 

.   640 

596 

, 

.   266 

237,245,479 

.   349 

2'87 

. 

.  274,  281,  288 

122 

INDEX   TO    THE   CASES    CITED. 


xliii 


U. 

United  States  v.  Langton,  5  Mason,  280, 
V.  Yaughan,  3  Binney,  394, 


673,  675,  C76 
512 


United  States  Bank  v.  Merchants  Bank,  1  Robinson,  Ya.  573,  .         97 

Updegraff  y.  Spring,  11  Sergeant  &  Eawle,  188,    .  .         681,  723,  725 

Upham  V.  Navlor,  9  Mass.  490,  .  .  .  •  .559 

Urie  I'.  Stevens,  2  Robinson,  La.  251,        ....  238 


Yan  Arsdale  v.  Krum,  9  Missouri,  397, 
Yau  Loan  v.  Kline,  10  Johnson,  129,    . 
Yan  Staphorst  v.  Pearce,  4  Mass.  258, 
Yienne  v.  M'Carty,  1  Dallas,  105, 
Yinson  v.  Huddlestone,  Cooke,  254, 
Yinton  v.  Bradford,  13  Mass.  114, 
Yreeland  v.  Brown,  1  Zabriskie,  214, 


142,  144,  771 

221,  224 

.   601,  621 

.       370 

221 

265, 327 

.    226,  400 


w. 

Wads-svorth  v.  Clark,  14  Yermont,  139, 
Waite  V.  Osborne,  11  Maine,  185,  . 
Wakefield  v.  Martin,  3  Mass.  558, 
Walbridge  v.  Spalding,  1  Douglass,  Mch.  451 
Walcott  V.  Hendrick,  6  Texas,  406,      . 
Walden  v.  Yaliant,  15  Missouri,  409, 
Walke  I'.  McGehee,  11  Alabama,  273, 
Walker  v.  Foxcroft,  2  Maine,  270, 

V.  Gibbs,  2  Dallas,  211  ;  1  Yeates,  255 

V.  Roberts,  4  Richardson,  561, 

V.  Wallace,  2  Dallas,  113, 

V.  Welch,  13  Illinois,  674,  . 

Wallace  v.  Barker,  8  Yermont,  440,    . 

V.  Forrest,  2  Harris  &  McHenrv,  26 

V.  McConnell,  13  Peters,  136, 

• V.  Patterson,  2  Harris  &  McHenry,  463, 

WaUis  r.  Wallace,  6  Howard,  Mi.  254, 
Ward  V.  County  of  Hartford,  12  Conn.  404, 

V.  Lamson,  6  Pick.  358, 

Whitney,  3  Sandford,  Sup.  Ct.  399, 

Warner,  In  re,  3  Wendell,  424, 
V.  Everitt,  7  B.  Monroe,  262, 


.   635 

, 

466 

.   510 

. 

134 

78 

. 

597 

416,522 

. 

341 

550 

. 

771,  773 

.   678 

, 

378 

.   243 

218, 

225,  260 

628, 

722,  724 

, 

561 

.   113 

. 

497 

.   438 

. 

290 

74,  369 

, 

92,  219 

xliv 


INDEX    TO    THE    CASES    CITED. 


Warner  v.  Webster,  13  Ohio,  505, 
Warren  v.  Copelin,  4  Metcalf,  594, 

r.  Lelaud,  9  JMass.  265, 

Waterhouse  v.  Smith,  22  Maine,  337, 
Waterman  v.  Robinson,  5  Mass.  303,    . 
Watkins  i'.  Field,  1  EngHsh,  391,   . 

I'.  Otis,  2  Pick.  88,      . 

Watson  V.  McAllister,  7  Martin,  3GS, 

V.  Plerpont,  7  Martin,  413, 

V.  Todd,  5  Mass.  271, 

Weaver  v.  Puryear,  11  Alabama,  941, 
Webb  V.  Peale,  7  Pick.  247, 

V.  Steele,  13  Xew  Hamp.  230,    . 

Webster  v.  Coffin,  14  Mass.  196,      . 

V.  Harper,  7  New  Hamp.  594, 

Weed  V.  Jewett,  2  Metcalf,  608,     . 
Welch  V.  Gurley,  2  Haywood,  N.  C.  334, 
Wells  V.  Banister,  4  Mass.  514, 

V.  Brander,  10  Smedes  &  Marshall,  348, 

V.  Greene,  8  Mass.  504, 

Welsh  V.  Joy,  13  Pick.  477,      . 

Wendell  v.  Pierce,  13  New  Hamp.  502,     . 

Wentworth  v.  Leonard,  4  Gushing,  414, 

V.  Weymouth,  11  Maine,  446, 

V.  Whittemore,  1  Mass.  471, 

Weston  V.  Dorr,  25  Maine,  176,      . 
Weyman  v.  Murdock,  Harper,  125,      . 
Wharton  v.  Conger,  9  Smedes  &  Marshall,  510, 
Wheeler  v.  Nichols,  32  Maine,  233,      . 

V.  Slavens,  13  Smedes  &  Marshall,  623, 

V.  Smith,  11  Barbour,  Sup.  Ct.  345,  . 

Whitaker  v.  Sumner,  9  Pick.  308,  . 

White  V.  Jenkins,  16  Mass.  62,  .  . 

V.  AVilson,  10  Illinois  (5  Oilman)  21, 

r.  "\^''yley,  17  Alabama,  167, 

Whitney  r.  Dean,  5  New  Ilamp.  249, 
. V.  Farwell,  10  New  Ilamp.  9, 

V.  Ladd,  10  Vermont,  165,     . 

. V.  Munroe,  19  Maine,  42, 

Whitticr  v.  Smith,  11  ]\Iass.  211, 
Wicks  v.  Branch  Bank,  12  Alabama,  594, 
Wi^fall  V.  Byne,  1  Richardson,  412,     . 
Wilbraham  v.  Snow,  2  Saunders,  4  7, 


.       409 

748 

320, 338 

388 

.       338 

706 

.       455 

.     117,  143 

68 

246,  265,  327,  488 

53 

453 

34  7,349 

.    343,  344 

325,  350,  772 

621 

.       467 

446 

226,400 

445 

.       203 

495 

.       343 

747 

524, 530, 544 

324 

99 

.     114,  291 

.       219 

125 

.       488 

232 

416,  441,  522 

.       89,  378 

171,  762 

520 

266,  322,  324,  327,329,  338,  347, 

356, '363 

.       341 

.     417,563 

266,  269,  325,  327,  338,  347,  350 

570,573,614 

.       142 

269 


WDEX    TO    THE    CASES    CITED. 


xlv 


WIlcoxv.  Mills,  4  Mass.  218,    . 

Wilder  v.  Bailey,  3  Mass.  289, 

Wilds  V.  Blancliard,  7  Vermont,  138,  . 

Wilkie  V.  Hall,  15  Conn.  32, 

Wilkinson  v.  Patterson,  G  Howard,  Mi.  193,    . 

Willard  v.  Butler,  14  Pick.  550,      . 

V.  Sheafe,  4  Mass.  235, 

V.  Sturtevant,  7  Pick.  194, 

Williams  v.  Brackett,  8  Mass.  240, 

V.  Cbeesborough,  4  Conn.  356,     . 

V.  Hunter,  3  Hawks,  545, 

V.  Marston,  3  Pick.  G5,     . 

V.  Oppelt,  1  Smedes  &  Marshall,  559, 

■ V.  Reed,  5  Pick.  480, 

Williamson  v.  Bowie,  6  Munford,  1 7G, 
Willing  V.  Bleeker,  2  Sergeant  &  Rawle,  221, 

V.  Consequa,  Peters,  C.  C.  301, 

Willis  I'.  Crooker,  1  Pick.  204, 
Wills  V.  Xoyes,  12  Pick.  324,  . 
Wilson  V.  Lizardi,  15  Louisiana,  255, 

V.  Outlaw,  Minor,  367, 

V.  Wilson,  8  Gill,  192, 

V.  Wood,  34  Maine,  123, 

Wiuchell  V.  Allen,  1  Conn.  385,     . 
Winsor  v.  Orcutt,  11  Paige,  5  78, 
Winston  v.  Ewing,  1  Alabama,  129, 
Winthrop  v.  Carleton,  8  Mass.  456, 
Witlierspoon  v.  Barber,  3  Stewart,  335,      . 
Wood  V.  Partridge,  11  Mass.  488, 

Wood  bridge  v.  Morse,  5  New  Hamp.  519, 

V.  Perkins,  3  Day,  364,     . 

■ ■  V.  Winthrop,  1  Root,  557, 

Woodman  v.  Trafton,  7  Maine,  1 78,     . 
Woodward  v.  Woodward,  4  Halsted,  115,  . 
Woolfolk  V.  Cage,  Walker,  300, 

Wray  i\  Gilmore,  1  Miles,  75, 

Wright  V.  Bos  worth,  7  New  Hamp.  590, 

V.  Foord,  5  New  Hamp.  178, 

Wrigley,  In  re,  4  Wendell,  602;  8  Ihkl.  134, 
• V.  Geyer,  4  Mass.  102, 

Wyman  v.  BQchborn,  6  Gushing,  264,  . 


677,  692 

.  483,  524 

244 

213 

.   304 

527 

437,  533,  550 

.  448,  654 

216 

195 

757,  761 

■  .      536 

207 

476 

218,  260 

219 

679,  680,  682,  725 
780 
757,  758 
620 
.   154 
52 
.   425 
.  471,  473 
,  158, 161, 171 
558 
722 
678 

534,  572,  692,  746 
417,  482,  496 
614 
648,  714,  717 
.   323 
475 
54 
109 
418 
.  444,  676 
81,  82,  85 
527 
.   551 


Xlvi  INDEX    TO    THE    CASES    CITED. 


Y. 

Yarborougli  v.  Hudson,  19  Alabama,  653, ....  769 

Yocum  V.  Barnes,  8  B.  Monroe,  496,    ....  300,  301 

Young  V.  Grey,  Harper,  38,  ....  •     138,  143 

V.  Gregory,  3  Call,  446,  .  .  .  •  .757 

i^.  Walker,  12  New  Hamp.  502,      .  .  268,329,330,391 

V.  Younjr,  2  Hill,  S.  C.  425,       ....  247,  474,  643 


Zeigenliagen  I'.  Doe,  Smitli,  174,    .....  408 

Zurcher  r.  Magee,  2  Alabama,  253,     .  .  .  .  .486 


LAW   OF  ATTACHMENTS. 


LAW   OF  ATTACIOIEXTS. 


INTRODUCTION. 

§  1.  The  attacbment  of  a  debtor's  property,  under  an 
initial,  instead  of  the  final,  process  in  an  action, — 
which  has  in  the  United  States  come  to  be  an  every- 
day proceeding,  regulated  by  the  statutes  of  every 
State  and  Territory,  and  has  given  rise  to  a  large  body 
of  written  law,  and  a  still  larger  amount  of  judicial 
decision,  —  originated  in  a  custom  of  the  "antient, 
renowned,  and  opulent  city  of  London." 

§  2.  This  custom  was  first  treated  of  by  "  W.  Bohux, 
of  the  Middle  Temple,  Esq.,"  in  a  work  entitled  "Pr«V- 
ilegia  Londini:  or,  the  Eights,  Liberties,  Privileges,  Laws, 
and  Customs  of  the  city  of  London;"  of  the  third 
edition  of  which,  a  copy  is  before  me,  printed  in  the 
year  1723.  In  the  preflice  to  that  work  the  author 
says :  "  Having  observed  in  the  course  of  our  English 
history,  many  attempts  made  by  the  ministers  of  some 
artful  and  designing  princes,  to  weaken  and  undermine 
the  ancient,  legal,  and  fundamental  rights,  liberties,  and 
privileges  of  the  city  and  citizens  of  London  :  I  thought 
myself  obliged  to  endeavor  to  collect  and  ascertain 
1  [1] 


§  3  ■  INTRODUCTION. 

such  Laws,  Customs,  and  Usages  of  the  said  City, 
wherein  the  original  Constitution  and  Foundation  of  its 
government  seem  to  have  been  laid ;  and  whereby  its 
happiness,  opulency,  and  glory  do  (under  God  and  his 
present  Majesty,)  evidently  subsist." 

§  3.  The  worthy  author,  after  a  brief  review  of  the 
disasters  disclosed  in  history  to  nations  whose  laws,  cus- 
toms, and  constitutions  have  been  undermined  and  sub- 
verted, exclaims :  "  How  happy  then  (yea,  thrice  happy 
compared  w^ith  others)  ought  the  City  and  Citizens  of 
London  to  esteem  themselves,  and  be  esteemed,  who 
have  hitherto  preserved  such  evident  and  noble  remains 
of  that  liberty  and  freedom,  and  of  those  rights  and 
privileges  whereof  the  whole  nation  were  possessed  in' 
the  times  of  our  British  and  Saxon  ancestors,  when  the 
free  people  of  this  island  enjoyed  the  right  of  electing 
all  their  civil  and  military,  as  well  as  spiritual,  magis- 
trates, officers,  and  superintendents;  as  may  be  fully 
evidenced  from  the  histories  and  monuments  of  those 
ancient  times ;  especially  from  the  lav/s  of  Edward  the 
Confessor,  which  laws  the  kings  of  the  Norman  race 
were  for  many  successions  sworn  to  observe." 

"And  it  may  be  here  observed,"  says  the  author, 
"that  altho'  the  Charters  of  the  City  of  London  (as 
they  'are  here  recited  by  15  Car.  IL)  do  begin  with 
those  of  William  I.,  yet  it  must  not  be  understood  as  if 
any  of  the  city  rights,  liberties,  or  privileges,  were 
originally  owing  to  the  grants  of  that  prince.  For  'tis 
evident,  the  said  City  and  Citizens  had  and  enjoyed 
most  of  the  liberties  and  privileges  mentioned  in  the 
following  charters  (besides  divers  others  not  therein 
[2] 


INTRODUCTION.  ^  O 

enumerated)  by  imniemorial   usage  and  custom  long 
before  the  arrival  of  William  I." 

§  4.  The  resort  to  the  writ  of  attachment,  then,  as 
the  first  process  in  an  action,  dates  back  more  than 
eight  centuries ;  and  yet  so  limited  has  it  been  in  Eng- 
land, that,  up  to  the  present  time,  only  one  treatise 
upon  it  has  appeared  in  that  country ;  ^  and  that,  of 
but  one  hundred  and  twenty  pages :  while  in  the 
United  States,  in  the  reports  of  the  diiFerent  State  and 
Federal  Courts,  the  oldest  of  which  were  published  near 
th^  close  of  the  last  century,  it  is  believed  more  than 
two  thousand  decisions  have  been  published ;  to  digest 
and  arrange  which,  in  the  form  of  a  treatise,  no  effort 
has  hitherto  been  made. 

§  5.  Several  reasons  combine  to  cause  this  difference 
in  the  volume  of  judicial  decisions  on  this  subject  in 
the  two  countries.  Prominent  among  them,  doubtless, 
are  the  local  and  limited  extent  of  the  custom  there, 
and  the  fact  that  an  attachment  under  the  custom  has 
only  one  of  the  results  which  belong  to  it  in  this  coun- 
try :  that  is,  the  writ  there  is  only  available  against 
property  and  credits  in  the  hands  of  the  plaintiff  or  of 
third  persons,  stjded  garnishees ;  while  here  it  not  only 
authorizes  proceedings  against  garnishees,  but  also  the 
direct  attachment  of  the  lands,  tenements,  goods,  and 
chattels  of  the  defendant,  and  the  holdino;  of  them  to 
answer  the  judgment  finally  obtained  in  the  action. 


^  The  Doctrine  and  Practice  of  Attachment  in  the  ]\Iayor's  Court,  Lon- 
don, by  Henry  Ashley.     London,  1819. 

[3] 


§  8  INTRODUCTION. 

§  6.  This  difference  has  doubtless  resulted  also,  in 
some  measure,  from  the  peculiar  organization  of  the 
country  into  many  distinct  and  independent  States, 
with  almost  unlimited  facility  of  transit  of  persons 
and  property  from  one  to  another,  making  some 
measure  necessary  to  secure  within  each  State  the 
property  of  debtors,  for  the  payment  there  of  their 
debts ;  but  it  can  more  certainly  be  traced  to  the  need 
of  effective  process  against  propertu,  when  generally 
that  against  the  person  has  been  abolished. 

§  7.  Be  the  origin  of  the  difference  what  it  m'ay, 
there  can  be  no  doubt  that  the  proceeding  by  attach- 
ment has,  in  the  United  States,  come  to  be  one  of  first 
importance,  as  will  be  seen  in  the  progress  of  this 
work.  In  relation  to  it,  there  is,  and  from  the  nature 
of  our  institutions  can  be,  no  uniform  system  of  statute 
law;  but  as  a  general  rule  this  does  not  seriously 
impair  the  value  of  the  decisions  of  any  particular 
State,  in  the  courts  of  another  State  ;  for  wdiile  there  is 
much  diversity  in  statutory  provisions,  there  is  also 
much  unity  of  design  ;  so  that  principles  of  identical 
import  may  be  established,  under  statutes  widely  differ- 
ent in  detail.  Still  it  is  true,  that  the  statute  law  does 
in  many  instances  produce  an  undesirable  diversity  of 
jurisJDrudence;  and  it  is  a  part  of  the  province  of  the 
author  of  such  a  work  as  this,  to  note  such  cases,  and 
to  point  out  wherein  the  general  current  of  adjudica- 
tion is  interrupted  by  the  terms  of  particular  statutes. 

§  8.  The  first  step,  then,  to  be  taken,  is,  to  group 
together  the  principal  provisions  of  the  statutes  of  the 
[4] 


INTRODUCTION.  §  10 

several  States  and  Territories :  not  those  which  relate 
merely  to  practice,  but  those  which  present  the  leading 
and  distinctive  features  of  each  system.  This  will  often 
be  useful  for  reference  in  the  subsequent  portions  of 
the  work,  besides  presenting  a  repertory,  wherein  the 
legal  j)rofession  in  each  State  may  see  at  a  glance  the 
system  of  every  other  State,  and  thus  avoid  trouble- 
some, and  oftentimes  fruitless  efforts  to  obtain  access  to 
the  statutes  themselves. 

§  9.  Starting  from  this  point,  the  subject  will  be 
treated  in  order,  beginning  with  the  first  proceeding  on 
the  part  of  the  plaintiff,  and  passing  on  through  the 
various  stages,  proceedings,  and  results  of  the  suit,  first, 
as  regards  the  direct  attachment  of  property,  and  next, 
as  to  its  indirect  attachment  in  the  hands  of  garnishees. 

§  10.  If  in  the  course  of  the  work  there  should 
appear  to  be  sometimes  too  extended  a  citation  of  the 
language  of  courts,  let  it  be  remembered  that  the 
reports  of  this  country  number  more  than  one  thousand 
volumes ;  that  complete  sets  of  them  are  to  be  found 
only  in  public  libraries ;  that  to  the  great  mass  of  the 
legal  profession  few  reports  are  accessible,  save  those  of 
their  own  State ;  and  that  it  would  in  many  instances 
deprive  a  decision  of  a  large  part  of  its  value  abroad, 
if  it  were  cited  without  the  reasons  upon  which  it  was 
based. 

1*  [5] 


CHAPTER    I. 

THE  LEADING  STATUTORY  PROVISIONS  OF  THE  SEVERAL  STATES 
AND  TERRITORIES  OF  THE  UNITED  STATES,  IN  RELATION  TO 
SUITS   BY   ATTACHMENT. 

§  11.  A  PROPER  presentation  of  the  leading  statutory 
provisions  of  the  several  States  and  Territories  of  the 
Union,  in  relation  to  suits  by  attachment,  would  require 
an  examination  of  the  legislation  of  each  State,  at  least 
as  far  back  as  a  period  antecedent  to  its  first  judicial 
Reports ;  v^rhich  in  the  majority  of  cases  would  be  the 
beginning  of  their  existence  as  States.  This  would  be 
impracticable,  because  all  the  statutes  of  the  several 
States  are  not  to  be  found  at  any  one  point ;  and  if 
practicable,  would  require  an  amount  of  labor  very  dis- 
proportioned  to  the  benefits  resulting  to  either  author 
or  reader.  Such  being  the  case,  this  resume  will  be  con- 
fined to  the  latest  statutes  which  were  accessible  to  the 
writer.  In  referring,  in  the  body  of  the  work,  to  statu- 
tory provisions  which  have  been  construed,  it  will  be 
found  that  great  care  has  been  taken  to  copy,  as  far  as 
practicable,  the  precise  language  which  was  under  dis- 
cussion in  the  case,  and  to  designate  it  by  quotation 
marks ;  so  that  as  little  inconvenience  as  possible  should 
result  from  the  want  of  a  fuller  exhibition  of  the  acts 
of  each  State  on  this  subject. 

In  the  synopsis  which  follows,  the  alphabetical  ar- 

[7] 


§  12  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

rangement  by  States  lias  been  adopted,  as  tlie  most  con- 
venient for  reference. 


ALABAMA. 

§  12,  Original  attachments,  foreign  and  domestic,  are 
issued  by  judges  of  the  circuit  or  county  courts,  or  jus- 
tices of  the  peace. 

The  judge  or  justice,  before  issuing  an  attachment, 
shall  require  the  party  applying  therefor,  his  agent, 
attorney,  or  factor,  to  make  affidavit  in  writing,  that 
the  person  against  whom  the  attachment  is  prayed, 
absconds,  or  secretes  himself;  or  that  he  resides  out  of 
the  State ;  or  that  he  is  about  to  remove  out  of  the 
State,  so  that  the  ordinary  process  of  law  cannot  be 
served  upon  him  ;  or  that  he  is  about  to  remove  his 
property  out  of  the  State,  and  that  thereby  the  plain- 
tiff will  probably  lose  the  debt,  or  have  to  sue  for  it  in 
another  State ;  and  shall  further  require  the  person 
applying  for  the  attachment,  his  agent,  attorney,  or 
factor,  to  swear  to  the  amount  of  the  sum  due  the 
plaintiff,  and  that  the  attachment  is  not  sued  out  for 
the  purpose  of  vexing  or  harassing  the  defendant ;  and 
shall  further  require  the  plaintiff,  his  agent,  attorney, 
or  factor,  to  give  bond,  with  approved  security,  payable 
to  the  defendant,  in  double  the  amount  sworn  to  be 
due,  conditioned  that  the  plaintiff  shall  prosecute  ^lis 
attachment  to  effect,  and  pay  the  defendant  all  such 
damages  as  he  may  sustain  by  the  wrongful  or  vexa- 
tious suing  out  of  the  attachment  j  and  upon  such  bond 
and  affidavit  being  made,  tlie  judge  or  justice  shall 
grant  an  attachment  against  the  estate  of  the  debtor, 
[S] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  12 

wherever  the  same  may  be  found,  in  the  hands  of  any 
person  or  persons,  indebted  to,  or  having  any  of  the 
effects  of  the  defendant,  or  so  much  as  shall  be  of  value 
sufficient  to  satisfy  the  debt  or  demand,  and  costs  of 
the  complainant ;  which  attachment  shall  be  deemed 
the  leading  process  in  the  action,  and  the  same  pro- 
ceedings shall  be  had  thereon  as  in  judicial  attachments. 
Every  attachment  issued  without  bond  and  affidavit 
shall  be  abated  on  the  plea  of  the  defendant. 

An  attachment  may  issue,  although-  the  debt  or 
demand  of  the  plaintiff  be  not  due ;  and  shall  be  a  lien 
on  the  property  attached,  until  the  debt  or  demand 
becomes  due,  when  judgment  shall  be  rendered  and 
execution  issued. 

A  non-resident  plaintiff  may  have  an  attachment 
against  the  property  of  a  non-resident  defendant ;  pro- 
vided he  give  good  and  sufficient  resident  security  in 
the  required  bond,  and  in  addition  to  the  oath  required 
as  above  stated,  the  party  making  the  oath  further 
swear  that  the  defendant  has  not  sufficient  property 
within  the  State  of  the  defendant's  residence,  within 
the  knowledge  or  belief  of  the  non-resident  plaintiff, 
his  agent,  or  attorney,  wherefrom  to  satisfy  the  debt 
or  demand. 

Any  person  supposed  to  be  indebted  to,  or  to  have 
any  effects  of,  the  defendant,  may  be  summoned  as  gar- 
nishee, and  required  to  answer  on  oath  what  he  is 
indebted  to  defendant,  and  what  effects  of  the  defend- 
ant he  has  in  his  hands,  and  had  at  the  time  of  serving 
the  attachment,  and  what  effects  or  debts  of  the 
defendant  there  are  in  the  hands  of  any  other,  and 
what  person,  to  his  knowledge  or  belief     The  answer 

[9] 


§  13  LEADING   STATUTORY   PROVISIONS.  [CH.  I. 

of  the  garnishee  may  be  controverted,  upon  the  plain- 
tiff's making  oath  that  he  beheves  it  to  be  incorrect.^ 


ARKANSAS. 

§  13.  To  obtain  an  attachment,  the  creditor  must  file 
with  his  declaration  an  affidavit,  of  himself  or  some 
other  person  for  him,  stating  that  the  defendant  is 
justly  indebted  to  the  plaintiff  in  a  sum  stated,  and 
also,  that  the  defendant  is  not  a  resident  of  the  State, 
or  that  he  is  about  to  remove  out  of  the  State,  or  that 
he  is  about  to  remove  his  goods  and  effects  out  of  the 
State,  or  that  he  so  secretes  himself  that  the  ordinary 
process  of  law  cannot  be  served  on  him ;  and  shall  also 
file  a  bond  to  the  defendant,  with  sufficient  security,  to 
be  approved  by  the  clerk,  in  double  the  amount  of  his 
claim  as  sworn  to,  conditioned  that  he  will  prove  his 
debt  or  demand  on  a  trial  at  law,  or  that  he  will  pay 
such  damages  as  shall  be  adjudged  against  him. 

The  writ  authorizes  the  attachment  of  the  defendant 
by  all  and  singular  his  goods  and  chattels,  lands  and 
tenements,  credits  and  effects ;  and  under  it  any  person 
in  whose  hands  or  possession  are  any  such  lands,  tene- 
ments, goods,  chattels,  monej^s,  credits,  or  effects  of  the 
defehdant,  may  be  summoned  as  garnishee,  and  may 
be  required  to  answer  allegations  and  interrogatories 
exhibited  against  him.  His  answer  may  be  deniecj  by 
the  plaintiff,  and  a  trial  of  the  truth  thereof  be  had.^ 


^  Clay's  Digest  of  Alabrinia  Laws,  54-04. 

■  English's  Digest  of  Statutes  of  Arkansas,  171-183. 

[10] 


CH.  l]  leadixg  statutory  provisions.  §  14 


CALIFORIsIA. 

§  14.    Creditors  may  proceed  by  attachment. 

Before  an  attachment  shall  be  issued,  the  plaintiff, 
his  agent  or  attorney,  shall  take  and  subscribe  an 
affidavit  that  the  defendant  is  indebted  to  the  plaintiff 
in  the  sum  of  two  hundred  dollars  or  over,  specifying 
the  amount  as  near  as  may  be,  over  and  above  all  legal 
set-offs,  and  that  the  sum  is  due  upon  contract,  express 
or  implied,  and  that  the  deponent  knows,  or  has  good 
reason  to  believe,  either  :  — 

1.  That  the  defendant  has  absconded,  or  is  about  to 
abscond  from  this  State,  or  that  he  is  concealed  therein 
to  the  injury  of  his  creditors;  or, 

2.  That  the  defendant  has  removed,  or  is  about  to 
remove  any  of  his  property  out  of  this  State,  with 
intent  to  defraud  his  creditors ;  or, 

3.  That  he  fraudulently  contracted  the  debt,  or 
incurred  the  obligation,  respecting  which  the  suit  is 
brought ;  or, 

4.  That  the  defendant  is  a  non-resident  of  this  State ; 
or, 

5.  That  the  defendant  has  fraudulently  conveyed, 
disposed  of,  or  concealed  his  property,  or  a  part  of  it, 
or  is  about  fraudulently  to  convey,  dispose  of,  or  con- 
ceal the  same,  or  a  part  of  it,  with  intent  to  defraud 
his  creditors. 

Before  an  attachment  can  issue,  the  plaintiff,  or  some 
responsible  person  in  his  behalf,  shall  execute  a  bond 
with   sufficient  surety,  in   a  sum  at  least   double   the 

[11] 


§  14  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

amount   of    the    demand    sworn    to,   payable   to    the 
defendant,  and  conditioned  that  the  plaintiff  shall  pay 
to  the  defendant  all  damages  that  he  may  incur  Jpy 
Ki\  reason  of  the  wrongful'  oiUDg  out 'of  .tbo  yfviMf/w^(KCM/\/nim 

LiM  '  Pending  the  action,  the  court,  upon  being  satisfied  of 
^  the    insufficiency  of   the   bond,  may   require  another 

.  bond,  and  such  further  surety  as  shall  be  necessary. 
The  writ  shall  command  the  sheriff  to  attach  so 
much  of  the  lands,  tenement's,  goods,  chattels,  moneys, 
and  effects  of  the  defendant,  not  exempt  from  execu- 
tion, wheresoever  the  same  may  be  found  w^ithin  the 
county,  as  will  be  sufficient  to  satisfy  the  plaintiff's 
demand. 

Real  estate  shall  be  bound,  and  the  attachment  shall 
be  a  lien  thereon,  from  the  time  when  a  certified  copy 
of  the  attachment,  with  a  description  of  such  real 
estate,  shall  be  deposited  in  the  Recorder's  office  of  the 
county  where  it  is  situated;  and  the  Recorder  shall 
note  on  the  writ  the  day,  hour,  and  minute  when  he 
received  it. 

Attachment  may  issue,  although  the  debt  or  demand 
of  the  plaintiff  be  not  due,  when  it  is  shown  by  tlie 
affidavit :  1st.  That  the  defendant  is  about  to  abscond 
from  the  State,  or  that  he  is  concealed  therein,  to  the 
injury  of  his  creditors:  or  2d.  That  he  is  about  to 
.  remove .  any  of  his  property  out  of  the  State,  or  that 
he  is  about  fraudulently  to  convey,  dispose  of,  or  con- 
ceal the  same,  with  intent  to  defraud  his  creditors.  ,  In 
A  such  case  no  judgment  shall  be  rendered  until  the  debt 

becomes  due,  but  the  attachment  shall  give  a  lien  as  in 
other  cases. 

If  the  plaintiff,  or  any  one  in  his  behalf,  make  affida- 
[12] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §   15 

vit,  stating  that  he  verily  believes  that  any  person 
(naming  him)  has  money,  property,  credits,  or  effects 
in  his  possession  belonging  to  the  defendant,  or  is 
indebted  to  the  defendant,  and  deliver  the  affidavit  to 
the  officer  having  the  writ,  the  officer,  if  he  cannot 
attach  such  property  and  get  possession  thereof,  shall 
serve  the  writ  and  affidavit  upon  such  person,  by  giving 
him  a  copy  thereof  with  a  written  notice  to  appear  in 
court  at  the  return  of  the  writ.  From  the  day  of  such 
service,  the  person  so  notified  as  garnishee  shall  stand 
liable  to  the  plaintiff  in  attachment,  to  the  amount  of 
the  property,  moneys,  and  credits  in  his  hands,  and 
debts  due,  or  to  become  due,  from  him  to  the  defendant, 
and  shall  attend  the  court  in  accordance  with  the  no- 
tice, and  answer  under  oath  all  questions  put  to  him 
touching  the  property,  credits,  and  effects  of  the 
defendant  in  the  garnishee's  possession,  or  within  his 
knowledge,  and  as  to  all  debts  then  due,  or  to  become 
due  from  him  to  the  defendant. 

If  the  answer  of  the  garnishee  be  not  satisfactory  to 
the  plaintiff,  an  issue  shall  be  made  up  between  the 
plaintiff  and  the  garnishee,  and  tried  as  in  other 
actions.^ 


CONNECTICUT. 

§  15.   The  process  in  civil  actions  in  this  State  is  by 
summons  or  attachment. 

Attachment  may  be  granted  against  the  goods  and 


1  Laws  of  California,  1849-50,  pp.  412-416. 

2  .  [13] 


§15  LEADING    STATUTORY    mO VISIONS.  [CH.  I. 

chattels  of  the  defendant,  and  for  want  thereof,  against 
his  lands,  or  against  his  person,  when  not  exempted 
from  imprisonment  on  the  execution  in  the  suit. 

When  the  plaintiff  prays  out  an  attachment,  a  suf- 
ficient bond  must  be  given,  conditioned  to  prosecute  his 
action  to  effect,  and  answer  all  damages  in  case  he 
make  not  his  plea  good. 

Whenever  the  goods  or  effects  of  a  debtor  are  con- 
cealed in  the  hands  of  his  attorney,  agent,  factor,  or 
trustee,  so  that  they  cannot  be  found  to  be  attached,  or 
where  debts  are  due  from  any  person  to  a  debtor,  any 
creditor  may  bring  his  action  against  such  debtor,  and 
insert  in  his  writ  a  direction  to  the  of&cer  to  leave  a 
true  and  attested  copy  thereof,  at  least  fourteen  days 
before  the  session  of  the  court  to  which  it  is  returnable, 
with  such  debtor's  attorney,  agent,  factor,  trustee,  or 
debtor,  or  at  the  place  of  his  or  their  usual  abode,  and 
it  shall  be  the  duty  of  the  officer  serving  such  writ  to 
leave  a  copy  thereof  according  to  such  direction ;  and 
from  the  time  of  leaving  such  copy,  all  the  goods  and 
effects  in  the  hands  of  such  attorney,  agent,  factor,  or 
trustee,  and  any  debt  due  from  such  debtor  to  the  de- 
fendant, shall  be  secured  in  his  hands,  to  pay  such 
judgment  as  the  plaintiff  shall  recover,  and  may  not 
otherwise  be  disposed  of,  by  such  attorney,  agent,  fac- 
tor, triistee,  or  debtor. 

The  garnishee  so  summoned  may  be  required  to 
appear  in  court,  and  answer  on  oath  whether  he  lias 
any  goods  or  effects  of  the  defendant,  or  is  indebted 
to  him. 

Any  debt,  legacy,  or  distributive  share,  due,  or  which 
may  become  due,  to  any  person,  from  the  estate  of  any 
[14] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  16 

deceased  person,  or  from  any  insolvent  estate  assigned 
for  the  benefit  of  creditors,  may  be  attached  in  the 
hands  of  the  executor,  administrator,  or  trustee.^ 


DELAWARE. 

§  16.  A  writ  of  domestic  attachment  issues  against 
an  inhabitant  of  this  State  after  a  return  to  a  summons, 
or  capias,  sued  and  deUvered  to  the  sheriff,  ten  days 
before  the  return  thereof,  showing  that  the  defendant 
cannot  be  found,  and  proof  satisfactory  to  the  court,  of 
the  cause  of  action ;  or  upon  affidavit  made  by  the 
plaintiff,  or  some  other  credible  person,  that  the  defend- 
ant is  justly  indebted  to  the  plaintiff  in  a  sum  exceed- 
ing fifty  dollars,  and  has  absconded  from  the  place  of 
his  usual  abode,  or  gone  out  of  the  State,  with  intent 
to  defraud  his  creditors,  or  to  elude  process,  as  is 
believed. 

A  writ  of  foreign  attachment  issues  against  any  per- 
son not  an  inhabitant  of  this  State,  after  a  return  to  a 
summons,  or  capias,  issued  and  delivered  to  the  sheriff, 
ten  days  before  the  return  thereof,  showing  that  the 
defendant  cannot  be  found,  and  proof,  satisfactory  to 
the  court,  of  the  cause  of  action ;  or  upon  affidavit 
made  by  the  plaintiff,  or  some  other  credible  person, 
that  the  defendant  resides  out  of  the  State,  and  is  justly 
indebted  to  the  plaintiff  in  a  sum  exceeding  fifty 
dollars. 


1  For  the  provisions  other  than  those  relating  to  garnishees,  see  Revised 
Statutes  of  Connecticut  of  1849,  pp.  49,  50 ;  for  those  relating  to  garnishees, 
seeIlid,no,  119,  120. 

[15] 


§16  LEADING    STATUTORY   PROVISIONS.  [CII.  I. 

The  writ  of  attachment  commands  the  officer  to 
attach  the  defendant  by  all  his  goods  and  chattels, 
rights  and  credits,  lands  and  tenements,  in  whose  hands, 
or  possession,  soever,  the  same  may  be  found  in  his 
bailiwick;  and  to  summon  the  defendant's  garnishees 
to  appear  in  court  to  declare  what  goods,  chattels, 
rights,  credits,  moneys,  or  effects  they  have  in  their 
hands. 

The  attachment  is  dissolved  by  the  defendant's 
appearing  and  putting  in  special  bail,  at  any  time 
before  judgment. 

On  the  return  of  the  writ,  the  court  appoints  three 
persons  to  audit  the  claims  of  the  defendant's  creditors, 
and  to  adjust  and  ascertain  all  their  demands,  including 
that  of  the  attachment  plaintiff.  These  auditors  give 
public  notice  to  the  defendant's  creditors,  of  the  time 
and  place  of  their  meetings ;  and  they  investigate  any 
claims  presented,  in  any  form  they  judge  best,  and  may 
examine  any  creditor  upon  oath. 

On  the  receipt  of  the  proceeds  of  sale  of  the  property 
attached,  the  auditors  calculate  and  settle  the  propor- 
tions and  dividends  due  the  several  creditors,  allowing 
to  the  creditor  attaching  and  prosecuting  the  same  to 
judgment,  a  double  share,  or  dividend,  if  such  shall  not 
exceed  his  debt. 

Creditors  failing  to  present  their  claims  to  the  audi- 
tors, or  to  make  proof  thereof,  are  debarred  from  re- 
ceiving any  share  or  dividend  in  the  distribution  to,  be 
made  by  the  auditors;  and  before  any  creditor  shall 
receive  any  dividend,  he  must  enter  into  recognizance, 
with  surety,  to  secure  the  repaj^ment  of  the  same,  if 
the  debtor  shall  within  one  year  thereafter,  appear  in 
[16] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  17 

the  court,  and  disprove  or  avoid  the  debt  upon  which 
the  dividend  is  paid.^ 


FLORIDA. 

§  17.  An  attachment  issues,  upon  the  plaintiff,  his 
agent  or  attorney,  making  oath  in  writing,  that  the 
amount  of  the  debt  or  sum  demanded  is  actually  due, 
and  also  that  the  party  from  whom  it  is  due,  is  actually 
removing  out  of  the  State,  or  resides  beyond  the  limits 
thereof,  or  absconds,  or  conceals  himself,  so  that  the 
ordinary  process  of  law  cannot  be  served  upon  him,  or 
is  removing  his  property  beyond  the  limits  of  the  State, 
or  secreting,  or  fraudulently  disposing  of  the  same,  for 
the  purpose  of  avoiding  the  payment  of  his  just  debts. 

When  an  executor  or  administrator  resides  or  has 
removed  beyond  the  limits  of  this  State,  and  there  are 
assets  of  the  testator  or  intestate  in  this  State,  an  at- 
tachment may  be  obtained  against  such  assets,  upon 
oath  beino;  made  of  the  debt  or  sum  demanded  beino; 
actually  due,  and  that  the  executor  or  administrator 
resides  or  has  removed  beyond  the  limits  of  the  State ; 
unless  he  have  an  authorized  and  publicly  known  agent 
in  the  State  ;  in  which  case  a  summons  served  on  the 
agent  is  as  valid  as  if  served  on  his  principal. 

No  attachment  issues  until  the  plaintiff,  in  person,  or 
by  his  agent  or  attorney,  enter  into  bond,  with  at  least 
two  good  and  sufficient  securities,  payable  to  the 
defendant,  in  at  least  double  the  debt  or  sum  demanded, 
conditioned  to  pay  all  costs  and  damages  the  defendant 


Revised  Statutes  of  Delaware  of  1852,  ch.  104. 

2  *  [  17  ] 


§18  LEADING   STATUTORY    PROVISIONS.  [CH.  I. 

may  sustain  in  consequence  of  improperly  suing  out 
the  attachment ;  and  this  bond  shall  not,  on  account  of 
informality,  be  adjudged  void,  as  against  the  obligors, 
nor  shall  they  be  discharged  therefrom,  although  the 
attachment  be  dissolved  by  reason  thereof 

In  the  case  of  two  or  more  attachments  against  the 
same  person,  and  several  judgments  obtained  at  the 
same  term,  they  shall  be  satisfied  pro  rata,  out  of  the 
judgments  obtained  against  the  garnishees  in  any  of 
the  suits,  unless  the  defendant  have  sufficient  other 
property  to  satisfy  the  same. 

An  attachment  may  issue  on  a  debt  not  due,  if  the 
same  will  become  due  within  nine  months  from  the 
time  the  writ  is  applied  for,  and  the  debtor  is  at  that 
time  actually  removing  his  property  beyond  the  limits 
of  the  State,  or  is  fraudulently  disposing  of  or  secreting 
the  same,  for  the  purpose  of  avoiding  the  payment  of 
his  just  debts. 

Where  no  property  of  the  defendant  can  be  found 
to  levy  on,  any  person  owing  the  defendant,  or  having 
any  moneys,  goods,  chattels,  or  effects  of  the  defendant 
in  his  hands,  may  be  summoned  as  garnishee ;  but  if 
the  plaintiff  fail  to  obtain  a  judgment  against  the  gar- 
nishee, no  judgment  shall  be  rendered  against  the 
defendant,  and  if  judgment  shall  have  been  rendered 
against  him,  it  shall  be  cancelled.^ 

GEORGIA. 

§  18.  The  judges  of  the  superior  court,  or  justices  of 
the  inferior  court,  or  any  one  of  them,  and  any  justice 

*  Thompson's  Digest  of  Florida  Laws,  of  1847,  pp.  307-375. 

[18] 


CH.  I.]  LEADING   STATUTORY   PROVISIONS.  §  18 

of  the  peace,  upon  complaint  made  on  oath  by  a  credi- 
tor that  his  debtor  resides  out  of  the  State,  or  is  actu- 
ally removing  without  the  limits  of  the  State,  or  any 
county,  or  absconds,  or  conceals  himself,  or  stands  in 
defiance  of  a  peace  officer,  so  that  the  ordinary  process 
of  law  cannot  be  served  on  him,  may  grant  an  attach- 
ment against  the  estate  of  such  debtor.  The  remedy 
by  attachment  may  be  resorted  to  by  non-resident  as 
well  as  resident  creditors. 

The  affidavit  may  be  made  by  the  creditor,  or  his 
agent  or  attorney,  in  fact  or  at  law,  by  swearing  to  the 
best  of  his  belief,  from  the  evidence  in  his  possession; 
and  in  case  of  non-resident  creditors  may  be  made 
before  any  Commissioner  appointed  by  the  State  of 
Georgia  to  take  affidavits,  or  before  any  judge  or  judi- 
cial officer  authorized  to  administer  oaths,  or  before  any 
Notary  Public. 

Before  the  attachment  can  issue,  the  plaintiff,  or  his 
agent  or  attorney  at  law,  or  in  fact,  shall  execute  a 
bond  to  the  defendant,  with  security,  in  a  sum  at  least 
equal  to  double  the  amount  sworn  to  be  due,  or  to  be- 
come due,  for  satisfying  and  paying  all  costs  which  may 
be  incurred  by  the  defendant,  in  case  the  plaintiff  shall 
discontinue,  or  be  cast  in,  his  suit,  and  also  all  damages 
which  may  be  recovered  against  the  plaintiff  for  suing 
out  the  same. 

Vvliere  a  debt  is  not  due,  and  the  debtor  is  removing, 
or  is  about  to  remove  without  the  limits  of  the  State, 
and  oath  is  made  by  the  creditor,  his  agent  or  attorney, 
of  the  amount  of  the  debt  to  become  due,  and  that  the 
debtor  is  removing,  or  is  about  to  remove  without  the 
limits  of  the  State,  an  attachment  may  issue  against 
the  property  of  the  debtor. 

[10] 


§  18  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

In  any  case  where  a  person  has  been  a  security  for 
another  in  a  note,  obligation,  or  other  instrument  of 
writing,  and  has  been  compelled  to  pay  off  the  same  by 
legal  process,  or  has  paid  by  being  called  upon  by  the 
person  holding  such  note,  obligation,  or  other  instru- 
ment in  writing ;  and  in  cases  where  suit  is  pending  on 
such  note,  &c.,  against  the  principal,  and  security  or 
securities,  or  against  either  or  any  of  them,  and  in 
cases  where  such  note,  &c.,  to  which  there  is  security  is 
not  due  and  the  principal  debtor  is  removing,  or  is 
about  to  remove,  or  has  removed  without  the  limits  of 
the  State  or  any  county ;  and  oath  being  made  by  the 
security,  his  agent,  or  attorney,  in  fact  or  at  law,  of  the 
ficts,  and  of  his  liability  on  such  note,  &c.,  and  that  his 
principal  is  removing,  or  is  about  to  remove,  or  has 
removed,  without  the  limits  of  the  State,  or  any  county 
therein,  an  attachment  may  issue  against  the  debtor,  in 
favor  of  the  security.  And  in  such  cases,  where  the 
security  has  already  paid  the  debt,  he  may  proceed  to 
judgment  as  in  other  cases;  and  where  a  suit  is  pend- 
ing against  the  security,  or  where  the  debt  is  not  yet 
due,  the  security  shall  have  a  lien  on  the  attached 
property  of  the  principal,  until  such  property  is  replev- 
ied, or  the  principal  shall  give  good  and  sufficient  secu- 
rity to  the  plaintiff  for  the  payment  of  such  note,  &c., 
wheii  it  ,shall  become  due,  or  at  the  termination  of  the 
suit: — and  in  case  the  property  shall  not  be  replevied, 
the  plaintiff  shall  be  admitted  to  proceed  to  establish 
his  demand  as  though  the  debt  was  due,  or  the  suit 
against  the  security  was  determined. 

Indorsers  of  notes,  obligations,  and  all  other  instru- 
ments in  writing,  are  entitled  to  the  same  remedy  as 
provided  for  securities. 
[20] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  19 

In  all  cases  the  attachment  first  served  shall  be  first 
satisfied. 

No  lien  shall  be  created  by  the  levying  of  an  attach- 
ment, to  the  exclusion  of  any  judgment  obtained  by 
any  creditor,  before  judgment  is  obtained  by  the  attach- 
ing creditor. 

Judgment  on  attachment  shall  bind  no  other  prop- 
erty than  that  attached,  unless  the  defendant  shall  come 
in  terms  of  the  law,  and  be  made  a  party  to  the  attach- 
ment. 

Garnishments  are  not  restricted  to  cases  of  attach- 
ment, but  may  be  made  in  all  cases  -svliatsoever,  either 
at  law  or  in  equity,  whether  the  subject-matter  of  the 
suit  be  a  debt  or  not ;  upon  the  plaintiff,  or  his  agent 
or  attorney,  making  an  affidavit  of  the  amount  of  the 
debt  which  he  believes  to  be  due,  and  that  he  is  appre- 
hensive of  the  loss  of  the  same  or  some  part  thereof 
unless  the  summons  of  garnishment  issue ;  and  may  be 
made  in  all  cases  where  execution  has  been  issued  on  a 
judgment. 

Garnishees  are  required  to  answer  as  to  indebtedness 
to  the  defendant,  and  also  as  to  money,  effects,  property', 
either  real  or  personal,  or  evidences  of  debt  belonging 
to  the  defendant,  in  their  hands  or  possession,  at  the 
time  of  service  of  the  summons.^ 


ILLINOIS. 

§  19.   Attachments  are  issued  by  the  Clerks  of  the 
Circuit  Courts. 

^  Hotchkiss'  Compilation  of  Georgia  Laws,  of  1845,  pp.  551-562  ;  Cobb's 
Digest  of  Georgia  Laws,  of  1851,  pp.  09-88. 

[21] 


§  19  LEADING    STATUTORY    PROVISIONS.  [CII.  I. 

If  any  creditor,  his  agent  or  attorney,  file  an  affida- 
vit in  the  office  of  the  Clerk,  setting  forth  that  the 
defendant  is  indebted  to  him,  in  a  sum  exceeding 
twenty  dollars,  stating  the  nature  and  amount  of  the 
indebtedness,  as  near  as  may  be,  and  that  the  defend- 
ant has  departed,  or  is  about  to  depart,  from  the  State, 
with  the  intention  of  havins;  his  effects  removed  there- 
from;  or  is  about  to  remove  his  property  from  the 
State,  to  the  injury  of  the  plaintiff;  or  conceals  himself, 
or  stands  in  defiance  of  an  officer,  so  that  process  can- 
not be  served  upon  him ;  or  is  not  a  resident  of  the 
State ;  the  Clerk  issues  an  attachment,  commanding  the 
lands,  tenements,  goods,  chattels,  rights,  credits,  moneys, 
and  effects  of  the  defendant,  of  every  kind,  in  whose 
hands  or  possession  the  same  may  be  found,  or  so  much 
thereof  as  will  be  sufficient  to  satisfy  the  claim  sworn 
to,  with  interest  and  costs  of  suit. 

Before  issuing  the  attachment,  the  Clerk  shall  take 
bond  and  security  from  the  plaintiff,  his  agent  or 
attorney,  payable  to  the  defendant,  in  double  the  sum 
sworn  to  be  due,  conditioned  that  the  plaintiff  shall 
prosecute  his  suit  with  effect,  or,  in  case  of  failure 
therein,  shall  well  and  truly  pay  and  satisfy  the  defend- 
ant all  such  costs  in  the  suit,  and  such  damages  as  shall 
be  awarded  against  the  plaintiff,  his  heirs,  executors,  or 
admihistrators,  in  any  suit  or  suits  which  may  be 
brought  for  wTongfully  suing  out  the  attachment. 

One  or  more  of  several  joint  debtors  may  be  sued 
by  attachment,  and  the  others  b}^  summons. 

The  officer  summons  as  garnishees  all  persons  whom 
the  plaintiff  designates,  as  having  any  property,  effects, 
or  choses  in  action,  in  their  possession  or  power  belong- 
ing to  the  defendant,  or  who  are  in  anywise  indebted 
[22] 


CH.  I.]  LEADING    STATUTORY    TRO VISIONS.  §  20 

to  the  defendant,  to  appear  in  court  on  the  return  day 
of  the  writ,  and  answer  on  oath  what  amount  they  are 
indebted  to  the  defendant,  and  what  property,  efiects, 
or  choses  in  action  belonging  to  the  defendant,  the}^ 
had  in  their  possession  or  power,  at  the  time  of  serving 
the  attachment. 

Garnishees  are  required  to  respond,  in  writing  and 
under  oath,  to  allegations  and  interrogatories  filed  by 
the  plaintiff,  touching  the  lands,  tenements,  goods,  chat- 
tels, moneys,  credits,  and  effects  of  the  defendant,  and 
the  value  thereof,  in  their  possession,  custody,  or  charge, 
or  from  them  due  and  owing  to  the  defendant,  at  the 
time  the  attachment  was  served,  or  at  any  time  after, 
or  which  may  thereafter  become  due. 

Whenever  the  plaintiff  shall  allege  that  any  gar- 
nishee has  not  discovered  the  true  amount  of  debts  due 
from  him  to  the  defendant,  or  what  goods  and  chattels 
belonging  to  the  defendant  are  in  his  possession,  the  court 
shall  direct  a  jury  to  be  impanelled,  to  inquire  what  is 
the  true  amount  due  from  the  garnishee  to  the  defend- 
ant, and  what  goods  and  chattels  are  in  his  possession 
belonging  to  the  defendant.  Upon  this  inquiry  wit- 
nesses may  be  examined  by  the  respective  parties  as  in 
ordinary  cases.^ 


INDIANA. 

§  20.  The  real  and  personal  property,  rights,  credits, 
moneys,  and  effects  of  debtors,  are  subject  to  attach- 
ment. 


1  Revised  Statutes  of  Illinois,  1845,  ch.  9,  pp.  G2-70. 

[23] 


§  20  LEADING   STATUTORY   PROVISIONS.  [CH.  I. 

The  statute  distinguishes  between  a  domestic  and  a 
foreign  attachment :  but  there  is  httle  difference  be- 
tween  them,  except  that  the  former  lies  against  an 
inhabitant  of  the  State,  and  the  latter  against  a  non- 
resident. 

The  property  of  an  inhabitant  of  the  State  may  be 
attached,  whenever  he  is  secretly  leaving  the  State,  or 
shall  have  left  the  State,  with  intent  to  defraud  his 
creditors,  or  to  avoid  the  service  of  civil  process,  or 
shall  keep  himself  concealed,  so  that  process  cannot  be 
served  upon  him,  with  intent  to  delay  or  defraud  his 
creditors. 

No  writ  of  attachment  shall  issue  against  any  debtor 
while  the  wife  and  family  of  such  debtor  shall  be  and 
remain  I)ond  fide  settled  within  the  county  where  his 
usual  place  of  residence  may  have  been  prior  to  his 
absence,  if  such  debtor  shall  not  continue  absent  from 
the  State  more  than  one  year  after  he  shall  have 
absented  himself,  unless  an  attempt  shall  be  made  to 
conceal  such  debtor's  absence,  or  imless  he  shall  be 
secretly  transferring,  conveying,  or  removing  his  prop- 
erty or  effects,  by  wdiicli  the  payment  of  his  debts  may 
be  evaded.  v 

If  the  wife  or  family  of  a  debtor  refuse  to  give  an 
.account  of  the  cause  of  his  absence,  or  of  the  place 
where  he  may  be,  or  give  a  false  account  of  either,  or 
are  unable  to  account  for  his  absence,  or  to  tell  where 
he  may  be  found,  such  refusal,  false  account,  or  ina- 
bility to  account  for  his  absence,  or  to  tell  where  he 
may  be  found,  shall  be  deemed  and  construed  an  at- 
tempt to  conceal  his  absence. 

Before  a  writ  of  domestic  attachment  shall  issue,  the 
creditor,  in  person  or  by  agent  or  attorney,  must  make 
[24] 


CH.  I.]  LEADING    STxVTUTORY    PROVISIONS.  §  20 

and  file  an  affidavit  with  the  clerk  of  the  proper  circuit 
court,  setting  forth  substantially  so  many  of  the  facts 
and  circumstances  authorizing  an  attachment,  as  are 
requisite  to  bring  the  case  within  the  above-mentioned 
provisions  of  the  law. 

The  plaintiff,  or  some  person  in  his  behalf,  shall  also 
file  with  the  clerk  a  bond,  with  sufficient  surety,  to  be 
approved  by  the  clerk,  payable  to  the  defendant,  in  a 
23enalty  of  double  the  sum  demanded,  with  condition 
for  the  due  prosecution  of  the  writ  of  attachment,  and 
the  payment  of  all  damages  which  may  be  sustained 
by  the  debtor,  if  the  proceedings  of  the  plaintiff  in  the 
attachment  shall  be  wrongful  and  oppressive ;  which 
bond  shall  be  kept  by  the  officer,  and  delivered  to  the 
defendant  when  demanded. 

The  writ  of  attachment  commands  the  sheriff  to 
attach  the  lands  and  tenements,  and  seize  and  take  into 
his  possession  the  goods,  chattels,  rights,  credits,  moneys, 
and  effects  of  the  defendant. 

Whenever  a  creditor,  or  his  agent  or  attorney,  shall 
make  and  file  an  affidavit  with  the  officer  issuino;  the 
attachment,  that  he  has  good  reason  to  believe  that  any 
person  named,  has  property  of  any  description  in  his 
possession  or  control  belonging  to  the  defendant,  Avhich 
the  officer  cannot  attach  by  virtue  of  the  writ ;  or  that 
such  person  is  indebted  to  the  defendant  by  decree, 
judgment,  bond,  bill,  note,  account,  or  contract,  or  has 
the  control  or  agency  of  any  such  j)roperty,  decree, 
judgment,  bond,  bill,  note,  account,  or  contract,  the 
clerk  shall  issue  his  summons  to  such  person,  as  gar- 
nishee, notifying  him  to  appear  at  the  next  term  of  the 
court,  there  to  answer,  under  oath  or  affirmation,  all 
•questions  that  shall  be  put  to  him  touching  the  rights, 
3  [25] 


§  20  LEADING    STATUTORY   PROVISIONS.  [ciI.  I. 

propert}^,  decrees,  judgments,  bonds,  bills,  notes,  ac- 
counts, contracts,  or  credits  of  the  defendant,  in  his 
hands,  or  within  his  knowledge,  agency,  or  control ;  and 
such  summons,  with  a  copy  of  the  original  writ  of 
attachment,  and  of  the  affidavit  against  the  garnishee, 
shall  be  served  by  leaving  them  with  the  garnishee,  or 
at  his  usual  place  of  residence. 

Each  and  every  creditor  of  the  defendant,  upon 
making  and  filing  his  affidavit  and  bond,  as  required  of 
the  attaching  creditor,  may,  at  any  time  before  the 
final  adjustment  of  the  suit,  be  permitted  to  file  and 
prove  his  claim  or  demand  against  the  defendant,  and 
may  also  have  any  person  summoned  as  garnishee,  who 
has  not  been  before  summoned. 

The  money  realized  from  the  sale  of  attached  prop- 
erty, or  recovered  from  garnishees,  shall,  after  paying 
all  costs  and  charges,  be  paid  to  the  several  creditors  in 
proportion  to  the  amount  of  their  several  claims,  as 
adjusted  by  the  court. 

A  writ  of  foreign  attachment  issues  against  a  non- 
resident ;  but  before  it  issues  the  nature  of  the  debt  or 
demand,  and  the  sum  claimed,  shall  be  proved  by  oath 
or  affirmation  to  be  justly  due  and  owing,  and  that  the 
defendant  is  not,  as  the  person  making  the  oath  verily 
believes,  at  the  time  a  resident  of  the  State  ;  and  bond 
shall  be  given  as  in  cases  of  domestic  attachment. 

Garnishees  may  be  summoned,  in  cases  of  foreign 
attachment,  as  in  those  of  domestic  attachment ;  and 
all  creditors  may  in  like  manner  prove  their  claims 
against  the  defendant,  and  receive  their  proportional 
share  of  the  fruits  of  the  first  attachment. 

The  joint  and  several  estates,  property,  and  interest 
of  joint  owners,  either  as  partners  or  otherwise,  are 
[20] 


CH.  I.]  LE.iDING   STATUTORY   PROVISIONS.  §  21 

licable  to  attachment  by  suit  against  all  or  any  of  them, 
who  may  be  indebted,  by  their  proper  names,  or  the 
names  by  which  they  may  be  known  or  reputed,  or  by 
the  partnership  name  or  style ;  and  the  estates,  prop- 
erty, and  interest  which  may  have  descended  to  non- 
resident heirs  or  devisees,  or  become  vested  in  the  non- 
resident executor  or  administrator  of  decedents,  shall 
be  liable  in  like  manner  for  debts  or  other  demands 
asrainst  said  decedent's  estates.^ 


IOWA. 

§  21.  In  an  action  for  the  recovery  of  money,  the 
plaintiff  may  cause  any  property  of  the  defendant 
which  is  not  exempt  from  execution,  to  be  attached  at 
the  commencement,  or  during  the  progress,  of  the  pro- 
ceedings. 

The  grounds  for  obtaining  the  attachment  are  em- 
bodied in  the  petition  setting  forth  the  cause  of  action, 
which  must  be  sworn  to,  and  must  state  that,  as  the 
affiant  verily  believes,  the  defendant  is  a  foreign  corpo- 
ration, or  acting  as  such,  or  that  he  is  a  non-resident  of 
the  State,  or  that  he  is  in  some  manner  about  to  dispose 
of  or  remove  his  property  out  of  the  State,  without 
leaving  sufficient  remaining  for  the  payment  of  his 
debts,  or  that  he  has  disposed  of  his  property,  (in  whole 
or  in  part,)  with  intent  to  defraud  his  creditors,  or  that 
he  has  absconded,  so  that  the  ordinary  process  cannot 
be  served  upon  him. 

If  the  plaintiff's  demand  is  founded  on  contract,  the 


1  Revised  Statutes  of  Indiana,  of  1843,  pp.  762  to  775. 

[27] 


§21  LEADING    STATUTORY  PROVISIONS.  [CH.  I. 

petition  must  stcate  that  something  is  due,  and,  as  nearly 
as  practicable,  the  amount. 

If  the  demand  is  not  founded  on  contract,  the  peti- 
tion must  be  presented  to  some  judge  of  the  supreme, 
district,  or  county  court,  who  shall  make  an  allowance 
thereon  of  the  amount  in  value  of  the  property  that 
may  be  attached. 

Property  of  a  debtor  may  be  attached  previous  to 
the  time  when  the  debt  becomes  due,  when  nothing  but 
time  is  wanting  to  fix  an  absolute  indebtedness,  and 
when  the  petition,  in  addition  to  that  fact,  states  that 
the  defendant  is  about  to  dispose  of  his  property  with 
intent  to  defraud  his  creditors,  or  that  he  is  about  to 
remove  from  the  State,  and  refuses  to  make  any  ar- 
rangement for  securing  the  payment  of  the  debt  when 
it  falls  due,  and  which  contemplated  removal  was  not 
known  to  the  plaintiff  at  the  time  the  debt  was  con- 
tracted. 

Before  any  property  can  be  attached,  the  plaintiff 
must  file  with  the  clerk  a  bond,  for  the  use  of  the 
defendant,  with  sureties  to  be  approved  by  the  clerk, 
in  a  penalty  at  least  double  the  value  of  the  property 
sought  to  be  attached,  and  in  no  case  less  than  two 
hundred  and  fifty  dollars,  if  in  the  district  court,  nor 
less  than  fifty  dollars,  if  in  a  justice's  court,  conditioned 
that  the  plaintiff*  will  pay  all  damages  which  the  de- 
fendant may  sustain  by  reason  of  the  wrongful  suing 
out  of  the  attachment.  In  an  action  on  such  bond  the 
plaintiff  therein  may  recover,  if  he  shows  that  the 
attachment  was  wrongfully  sued  out,  and  if  wilfully 
wrong,  he  may  recover  exemplary  damages.  Nor  need 
he  wait  until  the  principal  suit  is  determined,  before 
he  brings  suit  on  the  bond. 
[28] 


CH.  I.]  LEADING    STATUTORY   PRO^^SIONS.  §  21 

Stock,  or  an  interest  owned  by  the  defendant  in  any 
company,  and  also  debts  due  him,  or  property  of  his 
held  by  third  persons,  may  be  attached. 

A  sheriff  or  constable  may  be  garnished  for  money 
of  the  defendant  in  his  hands.  So  may  a  judgment 
debtor  of  the  defendant,  when  the  judgment  has  not 
been  previously  assigned;  and  also  an  executor,  for 
money  due  from  the  decedent  to  the  defendant. 

The  plaintiff  may,  in  writing,  direct  the  sheriff  to 
take  the  answer  of  the  garnishee,  and  append  the  same 
to  his  return.  In  such  case  the  sheriff  has  power  to 
administer  an  oath  to  garnishees,  requiring  them  to 
make  true  answers  to  the  questions  to  be  propounded, 
the  form  of  which  is  prescribed,  and  which  requires  the 
garnishee  to  state  whether  he  is  indebted  to  the  de- 
fendant, or  has  in  his  possession  or  under  his  control 
any  property,  rights,  or  credits  of  the  defendant,  or 
knows  of  any  debts  owing  to  the  defendant,  whether 
due  or  not,  or  any  property,  rights,  or  credits  belonging 
to  him,  and  in  the  possession  or  imder  the  control  of 
others. 

If  the  garnishee  refuse  to  answer  fully  and  unequiv- 
ocally the  interrogatories,  he  shall  be  required  to 
appear  and  answer  on  the  first  day  of  the  next  term  of 
the  court. 

When  the  answer  of  the  garnishee  is  made  at  the 
district  court,  the  plaintiff  may  controvert  any  facts 
contained  therein,  and  specified  by  him,  and  issue  being 
thereupon  joined,  may  be  tried  in  the  usual  manner.^ 


^  Code  of  Iowa,  of  1851,  ch.  109,  pp.  264  to  269. 

3*  [29] 


§  22  LEADING    STATUTORY    PROVISIONS.  [CH.  I. 


KENTUCKY. 

§  22.  The  plaintiff  in  a  civil  action,  may,  at  or  after 
the  commencement  thereof,  have  an  attachment  against 
the  property  of  the  defendant,  in  the  cases  and  upon 
the  grounds  hereinafter  stated,  as  a  security  for  the  sat- 
isfaction of  such  judgment  as  may  be  recovered :  — 

First.  In  an  action  for  the  recovery  of  money  where 
the  action  is  against 

1.  A  defendant  or  several  defendants,  who,  or  some 
one  of  whom,  is  a  foreign  corporation,  or  a  non-resident 
of  this  State  ;  or 

2.  Who  has  been  absent  therefrom  four  months ;  or 

3.  Has  departed  from  this  State  with  intent  to  de- 
fraud his  creditors ;  or 

4.  Has  left  the  county  of  his  residence,  to  avoid  the 
service  of  a  summons;  or 

5.  So  conceals  himself  that  a  summons  cannot  be 
served  upon  him ;  or 

6.  Is  about  to  remove  his  property,  or  a  material 
part  thereof,  out  of  this  State,  not  leaving  enough 
therein  to  satisfy  the  plaintiff's  claim ;  or 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of  his 
property,  or  suffered  or  permitted  it  to  be  sold,  with  the 
fraudulent  intent  to  cheat,  hinder,  or  delay  his  credi- 
tors; or 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of 
bis  property,  with  such  intent. 

But  an    attachment   shall   not   be  granted   on   the 
ground  that  the   defendant,  or  defendants,  or  any  of 
them,  is  a  foreign  corporation,  or  a  non-resident  of  this 
[30] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  22 

State,  for  any  claim  other  than  a  debt  or  demand  aris- 
ing upon  contract. 

Secondly.  In  an  action  to  recover  the  possession  of 
personal  property,  where  it  has  been  ordered  to  be  de- 
livered to  the  plaintiff,  and  where  the  property,  or  part 
thereof,  has  been  disposed  of,  concealed,  or  removed,  so 
that  the  order  for  its  delivery  cannot  be  executed  by 
the  sheriff. 

An  order  of  attachment  is  made  by  the  clerk  of  the 
court  in  which  the  action  is  brought,  in  any  of  the 
above-mentioned  cases,  upon  an  affidavit  of  the  plain- 
tiff being  filed,  showing  — 

1.  The  nature  of  the  plaintiff's  claim ; 

2.  That  it  is  just ; 

3.  The  amount  which  the  affiant  believes  the  plain- 
tiff ought  to  recover  ;  and, 

4.  The  existence  in  the  action  of  some  one  of  the 
grounds  for  an  attachment  above  enumerated,  in  the 
first  subdivision;  and  in  the  case  mentioned  in  the 
second  subdivision,  where  it  is  shown,  by  such  affidavit, 

.  or  by  the  return  of  the  sheriff  upon  the  order  for  the 
delivery  of  the  property  claimed,  that  the  facts  men- 
tioned in  that  subdivision  exist. 

Where  the  return  by  the  proper  officer  upon  a  sum- 
mons against  a  defendant,  states  that  he  has  left  the 
county  to  avoid  the  service  of  the  summons,  or  has 
concealed  himself  therein  for  that  purpose,  it  shall  be 
equivalent^  to  the  statement  of  the  fact  in  an  affidavit. 
The  order  of  attachment  shall  not  be  issued  until 
there  has  been  executed  in  the  clerk's  office,  by  one  or 
more  sufficient  sureties  of  the  plaintiff,  a  bond  to  the 
effect  that  the  plaintiff  shall  pay  to  the  defendant  all 
damages  which  he  may  sustain  by  reason  of  the  attach- 

[31] 


§  22  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

ment,  if  the  order  is  wrongfully  obtained,  not  exceed- 
ing double  the  amount  of  the  plaintiff's  claim. 

The  attachment  is  to  be  served  first  on  the  defend- 
ant's personal  property,  other  than  slaves ;  if  enough 
thereof  is  not  found,  then  on  his  slaves ;  and  lastly,  on 
his  real  estate. 

Where  the  property  to  be  attached  is  a  fund  in  conrt, 
the  execution  of  the  order  of  attachment  shall  be  by 
leaving  with  the  clerk  of  the  court  a  copy  thereof,  with 
a  notice  specifying  the  fund  ;  and  where  several  orders 
of  attachment  are  executed  upon  such  fund  on  the 
same  day,  they  shall  be  satisfied  out  of  it  ratably. 

The  sheriff  shall  not,  in  executing  an  order  of  attach- 
ment upon  personal  property  held  by  the  defendant 
jointly  or  in  common  with  another  person,  take  posses- 
sion of  such  property,  until  there  has  been  executed  a 
bond  to  such  other  person,  by  one  or  more  sufficient 
sureties  of  the  plaintiff,  to  the  effect  that  he  shall  pay 
to  such  person  the  damages  he  may  sustain  by  the 
wrongful  suing  out  of  the  order,  not  exceeding  double 
the  amount  of  the  plaintiff's  claim. 

An  order  of  attachment  binds  the  defendant's  prop- 
erty in  the  county,  which  might  be  seized  under  an 
execution  against  him,  from  the  time  of  the  delivery  of 
the  order  to  the  sherift^  in  the  same  manner  as  an  exe- 
cuti6n  would  bind  it ;  and  the  lien  of  the  plaintiff  is 
completed  upon  any  property  or  demand  of  the  defend- 
ant, by  executing  the  order  upon  it  in  the  manner 
directed  by  law. 

Garnishees  may  be  summoned,  and  are  required  to 
answer  on  oath.^ 


Kentucky  Code  of  rractlce  In  Civil  Cases,  of  1851,  §  242  and  following. 

[32] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  23 


LOUISIANA. 


§  23.  The  process  of  attachment  in  this  State  belongs 
to  the  class  of  proceedings  known  in  the  Code  of  Prac- 
tice as  Conservatory  Acts  which  may  accompany  the 
demand. 

An  attachment  in  the  hands  of  third  persons  is  a 
mandate,  which  a  creditor  obtains  from  a  competent 
judge,  or  a  clerk  of  a  court,  commanding  the  seizure  of 
any  property,  credit,  or  right  belonging  to  his  debtor, 
in  whatever  hands>  it  may  be  found,  to  satisfy  the 
demand  which  he  intends  to  bring  against  him. 

A  creditor  may  obtain  such  attachment  of  the  prop- 
erty of  his  debtor,  in  the  following  cases :  — 

1.  When  the  debtor  is  about  leaving  permanently 
the  State,  without  there  being  a  possibility,  in  the  ordi- 
nary course  of  judicial  proceedings,  of  obtaining  or 
executing  judgment  against  him  previous  to  his  depart- 
ure, or  when  the  debtor  has  already  left  the  State 
permanently. 

2.  When  the  debtor  resides  out  of  the  State. 

3.  When  he  conceals  himself  to  avoid  being  cited 
and  forced  to  answer  to  the  suit  intended  to  be  brought 
against  him. 

A  creditor  may  in  the  like  manner  obtain  a  mandate 
of  seizure  against  all  species  of  property  belonging  to 
his  debtor,  real  or  personal,  whether  it  consists  of  slaves, 
credits,  or  right  of  action,  and  whether  it  be  in  the 
debtor's  possession,  or  in  that  of  third  persons,  by  what- 
ever title  the  same  be  held,  either  as  deposit  or  placed 
under  their  custody. 

[33] 


§  23  LKIDING    STATUTORY   PROVISIONS.  [CH.  I. 

The  property  of  a  debtor  may  be  attached  in  the 
hands  of  third  persons  by  his  creditor,  in  order  to  se- 
cure the  payment  of  a  debt,  whatever  may  be  its 
nature,  whether  the  amount  be  liquidated  or  not,  pro- 
vided the  term  of  payment  have  arrived,  and  the  cred- 
itor, his  agent,  or  attorney  in  fact,  who  prays  for  the 
attachment,  state  expressly  and  positively  the  amount 
which  he  claims. 

Where  the  debt  or  obligation  is  not  yet  due,  any 
judge  of  competent  jurisdiction  miiy  order  a  writ  of 
attachment  to  issue,  whenever  he  shall  be  satisfied  by 
the  oath  of  the  creditor  or  his  agent  of  the  existence 
of  the  debt,  and  upon  the  creditor^  or  his  agent  swear- 
ing that  the  debtor  is  about  to  remove  his  property  out 
of  the  State  before  the  debt  becomes  due. 

A  creditor  wishing  to  have  the  property  of  his  debtor 
attached,  must  demand  it  in  a  petition  presented  to  a 
competent  judge,  with  a  declaration  made  under  oath 
at  the  foot  of  the  petition,  stating  the  amount  of  the 
sum  due  to  him,  and  that  he  verily  believes  that  his 
debtor  is  either  on  the  eve  of  leaving  the  State  forever ; 
that  he  has  left  it  permanently ;  that  he  resides  out  of 
the  State ;  or  that  he  conceals  himself  in  order  to  avoid 
being  cited.  In  the  absence  of  the  creditor,  the  oath 
may  be  made  by  the  agent  or  attorney  in  fact  of  the 
creditor,  to  the  best  of  his  knowledge  and  belief. 

The  creditor,  his  agent  or  attorney  in  fact,  praying 
such  attachment,  must,  besides,  annex  to  his  petition 
his  obligation  in  flivor  of  the  defendant,  for  a  sum 
exceeding  by  one  half  that  which  he  claims,  with  the 
surety  of  one  good  and  solvent  person,  residing  within 
the  jurisdiction  of  the  court  to  which  the  petition  is 
presented,  as  a  security  for  the  pajanent  of  such  dama- 
[34] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  24 

ges  as  the  defendant  may  recover  against  him,  in  case 
it  should  be  decided  that  the  attachment  was  wrong- 
fully obtained. 

If  a  creditor  know,  or  suspect,  that  a  third  person 
has,  in  his  possession,  property  belonging  to  his  debtor, 
or  that  he  is  indebted  to  the  debtor,  he  may  make  such 
person  a  party  to  the  suit,  by  having  him  cited,  to 
declare  on  oath  what  property  belonging  to  the  defend- 
ant he  has  in  his  possession,  or  in  what  sum  he  is 
indebted  to  the  defendant,  even  when  the  term  of  pay- 
ment has  not  yet  arrived.  The  person  thus  made  a 
party  to  the  suit,  is  termed  the  garnishee ;  and  he  is 
required  to  answer  categorically  under  oath  interroga- 
tories propounded  to  him  by  the  plaintiff.^ 


MAINE. 

§  24.  In  this  State  an  original  writ  may  be  framed 
either  to  attach  the  goods  or  estate  of  the  defendant, 
or  for  want  thereof  to  take  his  body ;  or  it  may  be  an 
original  summons,  either  with  or  without  an  order  to 
attach  the  goods  or  estate. 

All  goods  and  chattels  may  be  attached,  and  held  as 
security  to  satisfy  the  judgment  for  damages  and  costs, 
which  the  plaintiff  may  recover,  except  such  as  frgm 
their  nature  and  situation  have  been  considered  as 
exempted  from  attachment,  according  to  the  principles 
of  the  common  law,  as  adopted  and  practised  in  this 
State,  and  such  as  are  hereinafter  mentioned. 

^  These  provisions  are  found  in  Articles  208,  209,  2.39,  240,  241,  242,  243, 
244,  245,  246,  and  247,  of  Part  II.,  Title  1,  ch.  2,  §4,  of  the  Louisiana  Code 
of  Practice,  and  in  Bollard  and  Curry's  Digest  of  Louisiana  Laws,  18  and  19. 

[35] 


•     §  24  LEADING    STATUTORY    PROVISIONS.  [CH.  I. 

Keal  estate,  liable  to  be  taken  on  execution,  may  be 
attached. 

A  right  in  equity  of  redeeming  lands  mortgaged,  or 
taken  in  execution,  may  be  attached  on  mesne  process ; 
and,  when  so  attached,  if,  before  the  levy  of  the  execu- 
tion, the  lands  so  mortgaged  or  taken  in  execution,  are 
redeemed,  and  the  incumbrance  removed,  the  attach- 
ment shall  hold  the  premises  discharged  of  the  mort- 
gage or  lewy,  as  effectually  as  if  no  mortgage  or  levy 
had  existed,  and  the  premises  been  attached.^ 

All  personal  actions,  except  those  of  detinue,  replev- 
in, actions  on  the  case  for  malicious  prosecution,  slan- 
der by  writing  or  speaking,  and  those  for  assault  and 
battery,  may  be  commenced  by  foreign  attachment,  or 
trustee  process,  in  the  supreme  judicial  court,  or  dis- 
trict court,  or,  when  the  amount  demanded  in  damages 
is  not  less  than  five  dollars,  nor  more  than  twenty  dol- 
lars, before  a  municipal  or  police  court,  or  a  justice  of 
the  peace. 

The  writ  authorizes  an  attachment  of  goods  and 
estate  of  the  principal  defendant,  in  his  own  hands,  as 
well  as  in  the  hands  of  trustees. 

Service  of  the  writ  on  the  trustee  shall  bind  all 
goods,  effects,  or  credits  of  the  defendant,  intrusted  or 
deposited  in  his  hands  or  possession,  to  respond  the  final 
judgment  in  the  action,  in  like  manner  as  goods  or 
estate,  when  attached  by  the  ordinary  process. 

Any  debt  or  legacy,  due  from  an  executor  or  admin- 
istrator, and  any  goods,  effects,  and  credits  in  his  hands 
as  such,  may  be  attached  by  process  of  foreign  attach- 
ment. 

^  Kevised  Statutes  of  Maine,  of  1840-41,  pp.  484,  485. 

[3G] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  24 

When  any  person,  summoned  as  trustee,  is  bonnd  to 
deliver  to  the  defendant  any  specific  articles,  he  shall 
deliver  the  same,  or  so  much  thereof  as  may  be  neces- 
sary, to  the  officer  holding  the  execution  -,  and  the 
same  may  be  sold  by  the  officer,  and  the  proceeds 
applied  and  accounted  for,  in  the  same  manner,  as  if 
they  had  been  taken  on  execution  in  common  form. 

^o  person  shall  be  adjudged  a  trustee  in  either  of 
the  following  cases,  viz. :  — 

1st.  By  reason  of  having  drawn,  accepted,  miade,  or 
indorsed  any  negotiable  bill,  draft,  note,  or  other 
security. 

2d.  By  reason  of  any  money  or  other  thing,  received 
or  collected  by  him,  as  a  sheriff  or  other  officer,  by 
force  of  an  execution  or  other  legal  process  in  ftxvor  of 
the  defendant  in  the  foreign  attachment,  although  the 
same  should  have  been  demanded  of  him,  previously, 
by  the  defendant. 

3d.  By  reason  of  any  money  in  his  hands  as  a  pub- 
lic officer,  and  for  which  he  is  accountable,  as  such 
merely,  to  the  defendant. 

4th.  By  reason  of  any  money  or  other  thing,  due 
from  him  to  the  defendant,  unless  it  is,  at  the  time  of 
the  service  of  the  w^rit  upon  him,  due  absolutely,  and 
without  depending  on  any  contingency. 

5th.  By  reason  of  any  debt  due  from  him  on  a  judg- 
ment, so  Ions;  as  he  is  liable  to  an  execution  on  the 
judgment. 

6th.  By  reason  of  any  amount  due  from  him  to  the 
defendant,  as  wages  for  his  personal  labor,  for  a  time 
not  exceedino;  one  month. 

7th.  Where  service  was  made  on  him  by  leaving  a 
copy,  and  before  actual  notice  of  such  service,  or  rea- 
4  [37] 


§  25  LEADING    STATUTORY    PROVISIONS.  [CII.  I. 

sonable  ground  of  belief  that  the  same  has  been  made, 
he  shall  have  paid  the  debt  due  to  the  defendant,  or 
given  his  negotiable  security  therefor. 

Any  money,  or  other  thing,  due  to  the  defendant, 
may  be  attached  before  it  has  become  payable,  provided 
it  be  due  absolutely  and  without  any  contingency ;  but 
the  trustee  shall  not  be  compelled  to  pay  or  deliver  it 
before  the  time  appointed  therefor  by  the  contract.^  , 


MARYLAND. 

§  25.  A  creditor  may  obtain  an  attachment,'whether 
he  be  a  citizen  thereof  or  not,  against  his  debtor,  who 
is  not  a  citizen  thereof,  and  not  residing  therein. 

If  any  citizen  of  the  State,  being  indebted  to  another 
citizen  thereof,  shall  actually  run  away,  abscond,  or  fly 
from  justice,  or  secretly  remove  himself  from  his  place 
of  abode,  with  intent  to  evade  the  payment  of  his  just 
debts,  an  attachment  may  be  obtained  against  him. 

On  the  oath  or  affirmation  of  the  creditor,  made 
before  any  judge  of  the  general  court,  justice  of  the 
county  court,  or  justice  of  the  peace  of  this  State, 
or  before  any  judge  of  any  other  of  the  United 
States,  that  the  debtor  is  hand  fide  indebted  to  him, 
in  a  sum  named,  over  and  above  all  discounts,  and 
at  the  same  time  producing  the  bond,  bill,  protested 
bill  of  exchange,  promissory  note,  or  other  instru- 
ment of  writing,  or  account,  by  which  the  debtor 
is  indebted;  and  also,  on  the  oath  of  the  creditor,  of 
the  existence  of  any  of  the  grounds  above  mentioned 
as  authorizing  the  issuing  of  an  attachment;  the  judge 

1  Revised  Statutes  of  Maine,  of  18-10-41,  pp.  527-535. 

[38] 


CH.  I.]  LE.ADING    STATUTORY   PROVISIONS.  §  25 

of  the  general  court,  justice  of  the  county  court,  or  jus- 
tice of  the  peace,  issues  his  warrant  to  the  clerk  of  the 
court,  to  issue,  and  the  clerk  thereupon  issues,  an  attach- 
ment against  the  lands,  tenements,  goods,  chattels,  and 
credits  of  the  defendant.^ 

An  attachment  may  be  laid  upon  debts  due  the  de- 
fendant upon  judgments  or  decrees,  rendered  or  passed 
by  any  court  of  this  State,  and  judgment  of  condemna- 
tion thereof  may  be  had,  as  upon  other  debts  due  the 
defendant.  Execution  may  nevertheless  issue  upon 
such  judgment ;  but  the  money  made  thereon  shall  be 
paid  into  court  to  abide  the  event  of  the  attachment 
proceedings.^ 

It  may  also  be  laid  upon  any  interest  the  defendant 
may  have  in  the  capital  or  joint-stock  of  any  corpora- 
tion, or  in  the  debt  of  any  corporation,  transferable 
upon  the  books  thereof^ 

The  provisions  of  the  law  extend  to  corporations, 
whether  plaintiffs  or  defendants.* 

A  garnishee  is  required  to  answer  on  oath  written 
interrogatories,  touching  the  property  of  the  defendant 
in  his  possession  or  charge,  or  by  him  due  and  owing, 
at  the  time  of  serving  the  attachment,  or  at  any  other 
time ;  and  if  the  garnishee  fail  to  do  so,  the  court  is  re- 
quired to  render  judgment  against  him  for  the  amount 
of  the  judgment  against  the  defendant.'' 

A  garnishee  may  plead  on  behalf  of  the  defendant 
such  pleas  as  the  defendant  might  do,  if  he  had  ap- 
peared to  the  action.^ 


^  Dorsey's  Compilation  of  Laws  of  Maryland,  320. 

"  Ibid.  1067.  '  Ibid.  1101.  *  Ibid.  1089. 

Ibid.  321.  *  Ibid.  321. 

[39] 


§  26  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 


MASSACHUSETTS. 

§  2G.  Original  writs  may  be  framed,  either  to  attach 
the  goods  or  estate  of  the  defendant,  or  for  want  thereof 
to  take  his  body ;  or,  they  may  be  an  original  summons, 
either  with  or  without  an  order  to  attach  the  goods  or 
estate. 

All  real  estates,  that  are  liable  to  be  taken  in  execu- 
tion, may  be  attached  upon  the  original  writ,  in  any  ac- 
tion in  which  any  debt  or  damages  are  recoverable,  and 
held  as  security  to  satisfy  such  judgment  as  the  plaintiff 
may  recover. 

All  goods  and  chattels,  that  are  liable  to  be  taken  in 
execution,  may  be  attached,  except  such  as  from  their 
nature  and  situation  have  been  considered  as  exempted 
from  attachment,  according  to  the  principles  of  the 
common  law,  as  adopted  and  practised  in  this  State.^ 

All  personal  actions  may  be  commenced  by  the  pro- 
cess of  foreign  attachment,  or  trustee  process,  except 
actions  of  replevin,  actions  on  the  case  for  malicious 
prosecution,  or  for  slander,  either  by  writing  or  speak- 
ing, and  actions  of  trespass  for  assault  and  battery. 

The  writ  shall  authorize  an  attachment  of  the  goods 
and  estate  of  tlie  defendant,  in  his  own  hands,  and  also 
in  the  hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits,  of 
the  defendant,  intrusted  or  deposited  in  his  hands  or 
possession,  may  be  summoned  as  trustee,  and  such 
goods,  effects,  and  credits  shall  thereby  be  attached  and 

1  Revised  Statutes  of  Massachusetts,  of  183G,  pp.  547,  549. 

[40] 


CH.  I.]  LEADING   STATUTORY   PROVISIONS.  §  26 

held  to  respond  to  the  final  judgment  in  the  suit,  in  like 
manner  as  goods  or  estate,  when  attached  by  the  ordi- 
nary process. 

The  answers  and  statements,  sworn  to  by  any  person 
summoned  as  a  trustee,  shall  be  considered  as  true,  in 
deciding  how  far  he  is  chargeable,  but  either  party  may 
allege  and  prove  any  other  facts,  not  stated  nor  denied 
by  the  supposed  trustee,  that  may  be  material  in  decid- 
ing that  question. 

No  person  shall  be  adjudged  a  trustee,  in  either  of 
the  following  cases,  to  wit :  — 

First,  by  reason  of  having  drawn,  accepted,  made,  or 
indorsed  any  negotiable  bill,  draft,  note,  or  other  secu- 
rity : 

Secondly,  by  reason  of  any  money  or  other  thing,  re- 
ceived or  collected  by  him,  as  a  sheriff  or  other  officer, 
by  force  of  an  execution  op  other  legal  process,  in  favor 
of  the  defendant,  although  the  same  should  have  been 
previously  demanded  of  him  by  the  defendant  : 

TUrdhj,  by  reason  of  any  money  in  his  hands  as  a 
public  officer,  and  for  which  he  is  accountable,  merely 
as  such  officer  to  the  defendant : 

FourthI//,  by  reason  of  any  money  or  other  thing  due 
from  him  to  the  defendant,  unless  it  is,  at  the  time  of 
the  service  of  the  writ  on  him,  due  absolutely,  and  with- 
out depending  on  any  contingency  : 

Fifthly,  by  reason  of  any  debt  due  from  him  on  a 
judgment,  so  long  as  he  is  liable  to  an  execution  on  the 
judgment. 

Legacies  and  debts  due  from  executors  and  adminis- 
trators, and  any  other  goods,  effects,  or  credits,  in  the 
4=:^  ■  [41] 


§27  LEADING    STATUTORY    PROVISIONS.  [CH.  I. 

hands  of  executors  or  administrators^  as  such,  may  be 
attached.^ 


MICHIGAN. 

§  27.  The  grounds  of  attachment  in  this  State  are  — 

1.  That  the  defendant  has  absconded,  or  is  about  to 
abscond  from  this  State,  or  that  he  is  concealed  therein 
to  the  injury  of  his  creditors  :  or 

2.  That  he  has  assigned,  disposed  of,  or  concealed,  or 
is  about  to  assign,  dispose  of,  or  conceal  any  of  his  prop- 
erty, with  intent  to  defraud  his  creditors  :  or 

3.  That  he  has  removed,  or  is  about  to  remove,  any 
of  his  property  out  of  this  State,  with  intent  to  defraud 
his  creditors  :  or 

4.  That  he  fraudulently,  contracted  the  debt,  or  in- 
curred the  obligation,  respecting  which  the  suit  is 
brought :  or 

5.  That  he  is  not  a  resident  of  this  State,  and  has  not 
resided  therein  for  three  months  immediately  preceding 
the  lime  of  making  the  affidavit  for  obtaining  the  at- 
tachment :  or 

6.  That  the  defendant  is  a  foreign  corporation. 

In  order  to  obtain  an  attachment,  the  plaintiff,  or 
some  person  for  him,  must  make  an  affidavit  that  the 
defendant  is  indebted  to  the  plaintiff,  and  specifying 
the  amount  of  the  indebtedness,  as  near  as  may  be,  over 
and  above  all  legal  set-offs,  and  that  the  same  is  due 
upon  contract,  express  or  implied,  or  upon  judgment, 
and  that  the  deponent  knows,  or  has  good  reason  to  be- 

^  Revised  Statutes  of  Massachusetts,  of  183G,  pp.  C43-G51. 

[42] 


CII.  I.]  LEADING    STATUTORY    PROVISIONS.  §  28 

lieve,  the  existence  of  some  one  of  the  grounds  above 
stated,  for  obtaining  an  attachment. 

The  writ  commands  the  sheriff  to  attach  so  much  of 
the  hands,  tenements,  goods,  chattels,  moneys,  and  effects 
of  the  defendant,  not  exempt  from  execution,  whereso- 
ever the  same  may  be  found  within  the  county,  as  will 
be  sufQcient  to  satisfy  the  plaintiff's  demand.^ 


MISSISSIPPI. 

§  28.  An  attachment  against  the  estate  of  a  debtor 
issues  upon  a  creditor  making  complaint  on  oath  or 
affirmation,  that  his  debtor  has  removed,  or  is  removing 
out  of  the  State,  or  so  absconds,  or  privately  conceals 
himself,  that  the  ordinary  process  of  law  cannot  be 
served  upon  him ;  and  stating  the  amount  of  the  plain- 
tiff's debt  or  demand,  to  the  best  of  his  knowledge  and 
belief 

Under  the  writ,  slaves,  goods,  chattels,  lands,  and  ten- 
ements of  the  defendant,  wherever  found,  or  in  the 
hands  of  any  person  indebted  to  or  having  any  effects 
of  the  debtor,  may  be  attached  ;  and  garnishees  may  be 
summoned  to  appear  in  court  and  answer  upon  oath 
what  they  are  indebted  to  the  defendant,  or  what  effects 
of  the  defendant  they  have  in  their  hands,  or  had  at  the 
time  of  serving  the  attachment,  and  w^hat  effects  or 
debts  of  the  defendant  there  are  in  the  hands  of  any 
other  person  or  persons  to  their  knowledge  or  belief. 

Attachment  also  lies  against  the   property  of  non- 


^  Revised  Statutes  of  Michigan,  of  1846,  p.  514. 

[43] 


§  29  LEADING    STATUTORY   PROVISIONS.  [CII.  I. 

residents,  and  against  the  estate  within  the  State  of 
non-resident  decedents. 

It  may  be  obtained  before  the  debt  is  due  for  which 
it  issues,  where  the  creditor  has  sutficient  grounds  to 
suspect  that  his  debtor  will  remove  with  his  effects  out 
of  the  State  before  the  debt  will  be  payable,  or  when 
the  debtor  shall  have  so  removed,  leaving  effects. 

Before  granting  an  attachment  the  officer  is  required 
to  take  bond  and  security  from  the  plaintiff,  or  his 
agent  or  attorney,  payable  to  the  defendant,  in  double 
the  sum  for  which  the  complaint  is  made,  conditioned 
for  satisfying  all  costs  which  shall  be  awarded  to  the 
defendant,  in  case  the  plaintiff  shall  be  cast  in  the  suit, 
and  also  all  damages  which  shall  be  recovered  against 
the  plaintiff  for  wrongfully  suing  out  the  attachment.^ 


MISSOURI. 

§  29.  Creditors,  whose  demands  amount  to  fifty  dol- 
lars, may  sue  their  debtors  in  the  circuit  court,  by  at- 
tachment, in  the  following  cases  :  — 

1.  Where  the  debtor  is  not  a  resident  of,  nor  resides 
within  this  State  : 

2.  Where  the  debtor  conceals  himself,  so  that  the 
ordinary  process  of  law  cannot  be  served  upon  him  : 

3.  Where  the  debtor  has  absconded,  or  absented 
himself  from  his  usual  place  of  abode,  in  this  State,-  so 
thai>  the  ordinary  process  of  law  cannot  be  served  upon 
him : 

4.  Where  the  debtor  is  about  to  remove  his  property 

^  Hutchinson's  Mississippi  Code,  Ch.  5C,  Art.  4. 

[44] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  29 

or  effects  out  of  this  State,  with  the  intent  to  defraud, 
hinder,  or  delay  his  creditors  : 

5.  Where  the  debtor  has  fraudulently  conveyed  or 
assigned  his  property  or  effects,  so  as  to  hinder  or  delay 
his  creditors : 

6.  Where  the  debtor  has  fraudulently  concealed  or 
disposed  of  his  property  or  effects,  so  as  to  hinder  or 
delay  his  creditors  : 

7.  Where  the  debtor  is  about,  fraud ulentl}',  to  con- 
vey or  assign  his  property  or  effects,  so  as  to  hinder  or 
delay  his  creditors : 

8.  Where  the  debtor  is  about,  fraudulently,  to  con- 
ceal or  dispose  of  his  property  or  effects,  so  as  to  hinder 
and  delay  his  creditors  : 

9.  Where  the  debt  was  contracted  out  of  this  State, 
and  the  debtor  has  absconded  or  secretly  removed  his 
effects  into  this  State,  with  the  intent  to  defraud,  hin- 
der, or  delay  his  creditors. 

In  order  to  obtain  an  attachment  the  creditor  must 
file  with  his  declaration,  or  other  lawful  statement  of 
his  cause  of  action,  first,  an  affidavit  of  himself,  or  of 
some  other  person,  stating  that  the  defendant  is  justly 
indebted  to  the  plaintiff,  after  allowing  all  just  credits 
and  set-offs,  in  a  sum  (to  be  specified)  and  on  what  ac- 
count, and  that  the  affiant  has  good  reason  to  believe, 
and  does  believe,  the  existence  of  one  or  more  of  the 
above-recited  causes,  entitling  the  plaintiff  to  sue  by 
attachment :  and,  second,  a  bond,  executed  by  the  plain- 
tiff, or  some  responsible  person,  as  principal,  and  one  or 
more  securities,  approved  by  the  clerk,  and  resident 
householders  of  the  county  in  which  the  action  is 
brought,  in  a  sum  at  least  double  the  amount  of  the 

[45] 


§  29  LEADING   STATUTORY   PROVISIONS.  [CH.  I. 

demand  sworn  to,  payable  to  the  State  of  Missouri,  and 
conditioned  that  the  plaintiff  shall  prosecute  his  action 
without  delay,  and  with  effect,  refund  all  sums  of  money 
that  may  be  adjudged  to  be  refunded  to  the  defendant, 
or  found  to  have  been  received  by  the  plaintiff,  and 
not  justly  due  to  him,  and  pay  all  damages  that  may 
accrue  to  any  defendant  or  garnishee,  by  reason  of  the 
attachment,  or  any  process  or  proceeding  in  the  suit, 
or  by  reason  of  any  judgment  or  process  thereon.  This 
bond  may  be  sued  on  at  the  instance  of  any  party  in- 
jured, in  the  name  of  the  State,  to  the  use  of  such  party, 
for  the  breach  of  the  condition  thereof 

Under  the  writ  of  attachment,  lands,  tenements, 
goods,  moneys,  effects,  and  credits  may  be  attached,  and 
garnishees  summoned,  who  are  required  to  answer  on 
oath  allegations  and  interrogatories  propounded  in 
writing  by  the  plaintiff,  touching  the  property,  effects, 
and  credits  of  the  defendant  in  their  hands. 

Property  exempt  by  law  from  execution  cannot  be 
attached  where  the  defendant  is  a  resident  of,  or  resid- 
ing in,  the  State. 

In  all  cases  where  property  or  effects  shall  be  at- 
tached, the  defendant  may  file  a  plea,  in  the  nature  of 
a  plea  in  abatement,  without  oath,  putting  in  issue  the 
truth  of  the  facts  alleged  in  the  affidavit,  on  which  the 
attachment  was  sued  out.  Upon  such  issue,  the  plain- 
tiff is  held  to  prove  the  existence  of  the  flxcts  alleged 
by  him,  as  the  ground  of  the  attachment,  and  if  the 
issue  be  found  for  him,  the  cause  shall  proceed  ;  but  if 
it  be  found  for  the  defendant,  the  suit  shall-  be  dis- 
missed at  the  costs  of  the  plaintiff,  and  he  and  his  secu- 
rities shall  be  liable  on  their  bond  for  all  damages  occa- 
[40] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  30 

sionecl  by  the  attachment,  or  other  proceedings  in  the 
cause.-^ 


NEW   HAMPSHIRE. 

§  30.  In  this  State  the  writ  of  attachment,  as  distin- 
guished from  that  form  of  such  writ  known  as  "  foreign 
attachment "  or  "  trustee  process,"  issues  as  a  matter 
of  course,  upon  the  institution  of  any  personal  action. 
It  is  declared  in  the  law  to  be  an  original  process  in 
the  courts,  and  commands  the  officer  to  attach  the 
goods  and  estate  of  the  defendant.  Under  it,  all  prop- 
erty, real  and  personal,  which  is  liable  to  be  taken  in 
execution;  shares  of  stock  in  any  corporation;  pews 
and  seats  in  meeting-houses  or  places  of  public  worship ; 
and  the  franchise  of  any  corporation  authorized  to  re- 
ceive tolls,  so  far  as  relates  to  the  rights  to  receive  tolls, 
with  all  the  privileges  and  immunities  belonging  there- 
to ;  may  be  attached  ;  but  garnishees  are  not  summoned. 

Property  so  attached  is  holden  until  the  expiration 
of  thirty  days  from  the  time  of  rendering  judgment  in 
the  action  in  favor  of  the  plaintiff,  that  execution  may 
issue  thereon.^ 

All  personal  actions  may  be  commenced  by  the  pro- 
cess of  foreign  attachment,  or  trustee  process,  except 
actions  of  replevin,  actions  on  the  case  for  malicious 
prosecution,  or  for  slander  or  libel,  and  actions  of  tres- 
pass for  assault  and  battery,  and  false  imprisonment. 

This  trustee  writ  is  an  attachment  and  summons,  and 


1  Revised  Statutes  of  Missouri,  of  1845,  p.  132  and  following. 

2  Revised  Statutes  of  New  Hampshire,  of  1842,  pp.  361,  367,  369. 

[47] 


§  30  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

is  served  upon  the  defendant  and  the  trustees,  (or  gar- 
nishees,) in  the  same  manner  as  writs  of  summons. 

The  phiintiff  may  insert  the  names  of  as  many  per- 
sons as  trustees  as  he  may  deem  necessary,  at  any  time 
before  the  process  is  served  on  the  defendant,  but  not 
after. 

A  trustee  may  be  required  to  answer,  in  writing,  and 
under  oath,  interrogatories  as  to  his  liabiUty  as  trustee ; 
and  every  person  summoned  as  trustee,  and  having  in 
his  possession  any  money,  goods,  chattels,  rights,  or 
credits  of  the  defendant,  at  the  time  of  the  service  of 
the  writ  on  him,  or  at  any  time  after  such  service 
and  before  his  disclosure,  shall  be  adjudged  a  trustee 
therefor. 

Where  a  trustee  is  indebted  to  the  defendant,  judg- 
ment is  rendered  against  him  for  the  amount  of  the 
debt,  if  necessary  to  satisfy  the  claim  against  the  de- 
fendant ;  but  if  the  trustee  have  goods  and  chattels  of 
the  defendant,  or  is  under  contract  to  deliver  specific 
articles  to  him,  the  judgment  is  against  him  for  such 
goods,  chattels,  or  specific  articles;  and  if  he  deliver 
them  he  is  discharged  ;  but  if  he  refuse  to  expose  them 
so  that  the  creditor  may  levy  his  execution  thereon, 
the  court,  on  return  thereof  made  by  any  officer,  grants 
a  rule  upon  the  trustee  to  show  cause  why  execution 
should  not  issue  against  him  and  his  own  goods  and 
estate ;  and  upon  such  rule  being  duly  served,  and  no 
sufficient  cause  shown  to  the  contrary,  judgment  is  ren- 
dered and  execution  issued  aofainst  him  for  such  sum  as 
the  court  may  think  right  and  proper.^ 


Tvevisc'I  Statutes  of  New  Hampshire,  of  18i2,  pp.  417-423. 

[48] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  31 


NEW    JERSEY. 

I  31.  If  any  creditor  shall  make  oath  or  affirmation 
before  any  judge  of  any  of  the  courts  of  record  of  this 
State,  or  justice  of  the  peace  of  any  county  in  the 
same,  that  he  verily  believes  that  his  debtor  absconds 
from  his  creditors,  and  is  not,  to  his  knowledge  or  be- 
lief, resident  in  the  State  at  the  time,  the  clerk  of  the 
supreme  court,  or  of  any  circuit  court,  or  court  of 
common  pleas,  shall  issue  a  writ  of  attachment,  com- 
manding the  sheriff  to  attach  the  rights  and  credits, 
moneys  and  effects,  goods  and  chattels,  lands  and  tene- 
ments of  such  debtor,  wheresoever  they  may  be  found. 

If  the  creditor  be  absent  or  reside  out  of  the  State, 
the  oath  may  be  made  by  his  agent  or  attorney. 

The  officer  in  executing  the  writ  is  authorized  and 
required  (having  first  made  demand  and  being  refused) 
to  break  open  any  house,  chamber,  room,  shop,  door, 
chest,  trunk,  or  other  place  or  thing,  where  he  shall  be 
informed,  or  have  reason  to  believe,  any  money,  goods, 
books  of  accountj  bonds,  bills,  notes,  papers,  or  writings 
of  the  defendant  may  be  deposited,  secreted,  had,  or 
found. 

On  the  return  of  the  writ  the  clerk  gives  notice  for 
two  months  successively,  in  some  newspaper  circulating 
in  the  State,  of  the  attachment. 

The  court,  on  the  return  of  the  writ,  appoints  three 
auditors,  to  audit  and  adjust  the  demands  of  the  plain- 
tiff, and  of  so  many  of  the  defendant's  creditors  as  shall 
have  applied  to  the  court,  or  to  the  auditors  before  they 
5  [49] 


§31  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

shall  have  made  their  report,  for  that  purpose,  and  to 
make  report  in  writing. 

The  auditors,  or  any  two  of  them,  may  issue  their 
warrant  under  their  hands  and  seals,  commanding  the 
sheriff  of  the  county,  or  any  constable,  to  bring  before 
them  at  a  certain  time  and  place  therein  specified,  the 
wife  of  the  defendant,  or  any  other  person,  and  examine 
them,  by  word  of  mouth  or  interrogatories  in  writing, 
touching  all  matters  relating  to  the  trade,  dealings, 
moneys,  debts,  effects,  rights,  credits,  lands,  tenements, 
property,  and  estate  of  the  defendant,  and  his  secret 
grants,  or  fraudulent  transfer  or  conveyance  of  the 
same  ;  and  they  may  also  issue  their  warrant  command- 
ing the  sheriff  or  constable,  (having  first  made  demand 
and  been  refused,)  to  break  open  any  place  or  thing 
where  they  shall  have  reason  to  believe  any  moneys, 
goods,  chattels,  books  of  account,  bonds,  bills,  notes,  pa- 
pers, or  writings  of  the  defendant  may  be  deposited, 
secreted,  had,  or  found,  and  to  seize  and  inventory  the 
same,  and  make  report  thereof  to  the  court  at  the  next 
term. 

The  auditors  may  also  sue  before  justices  of  the  peace 
for  demands  not  exceeding  one  hundred  dollars,  due  the 
defendant. 

They  are  required  to  sell  the  property  of  the  defend- 
ant,' real  and  personal ;  after  which  they  must  give 
public  notice  in  newspapers,  requiring  a  meeting  of  the 
plaintiff,  and  creditors  who  may  have  applied,  at  a  cer- 
tain time  and  place ;  at  which  meeting,  or  other  subse- 
quent one,  the  auditors  shall  distribute  among  the 
plaintiff  and  creditors  equally,  and  in  a  ratable  propor- 
tion, according  to  the  amount  of  their  respective  debts, 
[50] 


en.  I.]  LEADING   STATUTORY   PROVISIONS.  §  32 

as  ascertained  by  the  auditors'  report,  and  the  judgment 
of  the  court  thereon,  all  the  moneys  arising  from  the 
sale  of  the  goods  and  chattels,  lands  and  tenements, 
first  deducting  legal  costs  and  charges ;  and  if  the 
moneys  be  not  sufficient  to  satisfy  the  debts,  they  shall 
assign  to  the  plaintiff  and  creditors,  the  choses  in 
action,  rights,  and  credits  of  the  defendant,  in  propor- 
tion to  their  respective  debts ;  which  assignment  shall 
vest  the  property  and  interest  of  the  defendant  in  the 
assignee,  so  as  he  may  sue  for  and  recover  the  same  in 
his  own  name  and  to  his  own  use. 

An  attachment  may  also  be  obtained  against  non- 
resident debtors  and  foreign  corporations. 

It  issues  as^ainst  the  heirs  and  devisees  of  a  deceased 
debtor,  in  all  cases  in  which  it  might  lawfully  have 
been  issued  against  the  debtor  in  his  lifetime. 

Lesracies  and  distributive  shares  of  estates  in  the 
hands  of  executors  or  administrators,  may  be  attached. 

Garnishees  may  be  summoned,  but  the  mode  of  pro- 
ceeding against  them,  except  where  they  are  about  to 
abscond,  is  not  pointed  out  in  the  statute.-^ 


,  NEW    YORK. 

§  32.  In  an  action  for  the  recovery  of  money 
against  a  corporation,  created  by  or  under  the  laws  of 
any  other  State,  government,  or  country,  or  against  a 
defendant  who  is  not  a  resident  of  this  State,  or  against 
a  defendant  who  has  absconded  or  concealed  himself  as 


Revised  Statutes  of  New  Jersey,  of  1846,  pp.  48-63. 

[51] 


§  32  LEADING   STATUTORY   PROVISIONS.  [CH.  I. 

hereinafter  mentioned,  the  plaintiff,  at  the  time  of 
issuing  the  summons,  or  at  any  time  afterwards,  may 
have  the  property  of  such  defendant  attached  in  the 
manner  hereinafter  prescribed,  as  a  satisfaction  of  such 
judgment  as  the  plaintiff  may  recover. 

A  warrant  of  attachment  must  be  obtained  from  a 
judge  of  the  court  in  which  the  action  is  brought,  or 
from  a  county  judge. 

The  warrant  may  be  issued  whenever  it  shall  appear 
by  affidavit  that  a  cause  of  action  exists  against  such 
defendant,  specifying  the  amount  of  the  claim  and  the 
grounds  thereof,  and  that  the  defendant  is,  either  a 
foreign  corporation,  or  not  a  resident  of  this  State,  or 
has  departed  therefrom  with  intent  to  defraud  his  cred- 
itors, or  to  avoid  the  service  of  a  summons,  or  keeps 
himself  concealed  therein  with  the  like  intent. 

Before  issuing  the  warrant,  the  judge  shall  require  a 
v^ritten  undertaking  on  the  part  of  the  plaintiff,  with 
sufficient  surety,  to  the  effect  that  if  the  defendant 
recover  judgment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not 
exceeding  the  sum  specified  in  the  undertaking,  which 
shall  be  at  least  two  hundred  and  fifty  dollars. 

The  rights  and  shares  which  a  defendant  may  have 
in  the  stock  of  any  association  or  corporation,  together 
■with  the  interest  and  profits  thereon,  and  all  other 
property  in  this  State  of  such  defendant,  shall  be  liable 
to  be  attached ;  and  garnishees  may  be  summoned.-^ 


^  Code  of  Procedure,  Chapter  IV.,  Title  7,  §  227,  228,  229,  230,  234,  235. 

[52] 


CH.  I.]  LEADING   STATUTORY   PROVISIONS.  §  33 


NORTH    CAROLINA. 


§  33.  Upon  complaint  being  made  on  oath  to  any  of 
the  judges  of  the  supreme  or  superior  courts,  or  to 
any  justice  of  any  of  the  county  courts,  by  any  per- 
son, his  attorney,  agent,  or  factor,  that  any  person 
(indebted  to  him)  hath  removed  or  is  removing  himself 
out  of  the  county  privately,  or  so  absents  or  conceals 
himself  that  the  ordinary  process  of  the  law  cannot  be 
served  on  him ;  and  if  such  plaintiff,  his  attorney,  agent, 
or  fiictor  further  swears  to  the  amount  of  his  debt  or 
demand,  to  the  best  of  his  knowledge  and  belief;  the 
judge  or  justice  shall  grant  an  attachment  against  the 
estate  of  such  debtor,  wherever  the  same  may  be 
found,  or  in  the  hands  of  any  person  or  persons  in- 
debted to,  or  having  any  of  the  effects  of,  the  defend- 
ant, or  so  much  thereof  as  shall  be  of  value  sufficient 
to  satisfy  the  debt  or  demand,  and  costs  of  such  com- 
plaint. 

When  a  person,  who  shall  be  an  inhabitant  of  any 
other  government,  so  that  he  cannot  be  personally 
served  with  process,  shall  be  indebted  to  any  person,  a 
resident  of  this  State,  and  hath  any  estate  within  the 
same,  any  of  the  said  judges  or  justices  may  grant  an 
attachment  against  the  estate  of  such  foreign  person, 
under  the  rules,  restrictions,  and  regulations  before 
mentioned. 

The  judge,  before  granting  an  attachment,  shall  take 
bond  and  security  of  the  plaintiff,  payable  to  the  de- 
fendant, in  double  the  sum  for  which  the  complaint  is 
made,  conditioned  for  satisfying  all  costs  which  shall  be 
5-^  [53] 


§  34  LEADING   STATUTORY   PROVISIONS.  [CH.  I. 

awarded  to  such  defendant,  in  case  the  plaintiff  shall 
be  cast  in  the  suit,  and  also  all  damages  which  shall  he 
recovered  of  the  plaintiff  in  any  suit  which  may  be 
brought  against  him  for  wrongfully  suing  out  such 
attachment;  which  bond  shall  be  returned  with  the 
writ ;  and  every  writ  issued  without  bond  and  affidavit 
taken  and  returned  as  aforesaid  shall  be  abated  on  the 
plea  of  the  defendant. 

Where  the  officer  serves  an  attachment  in  the  hands 
of  any  person  supposed  to  be  indebted  to,  or  to  have 
any  effects  of  the  defendant,  he  shall  summon  such  per- 
son as  garnishee  in  writing,  to  appear  at  the  court  to 
which  the  attachment  is  returnable,  to  answer  on  oath 
what  he  is  indebted  to  the  defendant,  or  what  effects  of 
the  defendant  he. has  in  his  hands  and  had  at  the  time 
of  serving  the  attachment,  and  what  effects  or  debts  of 
the  defendant  there  are  in  the  hands  of  any  other  and 
what  person.^ 


OHIO. 

§  34.  The  plaintiff  in  a  civil  action  for  the  recovery 
of  money,  may,  at  or  after  the  commencement  thereof, 
have  an  attachment  against  the  property  of  the  de- 
fen(^ant,  upon  the  following  grounds :  — 

1.  When  the  defendant,  or  one  of  several  defend- 
ants, is  a  foreign  corporation  or  a  non-resident  of  this 
State :  or 

2.  Has  absconded  with  the  intent  to  defraud  his  cred- 
itors: or 


>  Revised  Statutes  of  North  Carolina,  of  1837,  C'li.  6. 

[54] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  34 

^    3.  Has  left  the  county  of  his  residence  to  avoid  the 
service  of  a  summons :  or 

4.  So  conceals  himself,  that  a  summons  cannot  be 
served  upon  him :  or 

5.  Is  about  to  remove  his  property,  or  a  part  thereof, 
out  of  the  jurisdiction  of  the  court,  with  the  intent  to 
defraud  his  creditors  :  or 

6.  Is  about  to  convert  his  property,  or  a  part  thereof, 
into  money,  for  the  purpose  of  placing  it  beyond  the 
reach  of  his  creditors :  or 

7.  Has  property,  or  rights  in  action,  which  he  con- 
ceals: or 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about 
to  dispose  of,  his  property,  or  a  part  thereof,  with  the 
intent  to  defraud  his  creditors :  or 

9.  Fraudulently  contracted  the  debt,  or  incurred  the 
obligation,  for  which  suit  is  about  to  be,  or  has  been, 
brought. 

But  an  attachment  shall  not  be  granted  on  the 
ground  that  the  defendant  is  a  foreign  corporation  or  a 
non-resident  of  this  State,  for  any  other  claim  than  a 
debt  or  demand  arising  upon  contract,  judgment,  or 
decree. 

An  order  of  attachment  is  made  by  the  clerk  of  the 
court  in  which  the  action  is  brought,  when  there  is 
filed  in  his  office  an  affidavit  of  the  plaintiff',  his  agent, 
or  attorney,  showing 

1.  The  nature  of  the  plaintiff^'s  claim : 

2.  That  it  is  just: 

3.  The  amount  which  the  affiant  believes  the  plain- 
tiff ought  to  recover :  and 

4.  The  existence  of  some  one  of  the  grounds  for  an 
attachment,  above  enumerated. 

[55] 


§  34  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

When  the  ground  of  the  attachment  is,  that  the 
defendant  is  a  foreign  corporation,  or  a  non-resident  of 
this  State,  the  order  of  attachment  may  be  issued  with- 
out an  undertaking.  In  all  other  cases,  it  shall  not  be 
issued  until  there  has  been  executed  in  the  clerk's  office, 
by  one  or  more  sufficient  sureties  of  the  plaintiff,  to  be 
approved  by  the  clerk,  an  undertaking,  not  exceeding 
double  the  amount  of  the  plaintiff's  claim,  to  the  effect 
that  the  plaintiff  shall  pay  the  defendant  all  damages, 
which  he  may  sustain  by  reason  of  the  attachment,  if 
the  order  be  wrongfully  obtained. 

Under  the  order  of  attachment  may  be  attached 
lands,  tenements,  goods,  chattels,  stocks,  or  interest  in 
stocks,  rights,  credits,  moneys,  and  effects  of  the  defend- 
ant, not  exempt  by  law  from  the  payment  of  plaintiff's 
claim. 

When  there  are  several  orders  of  attachment  against 
the  same  defendant,  they  shall  be  executed  in  the  order 
in  which  they  were  received  by  the  sheriff. 

A  receiver  may  be  appointed  by  the  court,  or  any 
judge  thereof  during  vacation,  who  shall  take  possession 
of  all  notes,  due-bills,  books  of  account,  accounts,  and 
all  other  evidences  of  debt,  that  have  been  taken  by 
the  officer,  as  the  property  of  the  defendant,  and  shall 
proceed  to  settle  and  collect  the  same.  For  that  pur- 
pose, he  may  commence  and  maintain  actions  in  his 
own  name  as  such  receiver;  but  in  such  actions  no 
right  of  defence  shall  be  impaired  or  affected. 

The  receiver  is  to  give  notice,  forthwith,  of  his  ap- 
pointment to  the  persons  indebted  to  the  defendant; 
which  notice  shall  be  served  by  copy ;  and  from  the 
date  of  such  service,  the  debtors  shall  stand  liable  to 
the  plaintiff  in  attachment  for  the  amount  of  moneys 
[5G] 


CH.  l]  leading  statutory  provisions.  §  35 

and  credits  in  their  hands  or  due  from  them  to  the  de- 
fendant, and  shall  accomit  therefor  to  the  receiver. 

An  attachment  may  be  obtained-  on  a  claim  before  it 
is  due, 

1.  Where  a  debtor  has  sold,  conveyed,  or  otherwise 
disposed  of  his  property,  with  the  fraudulent  intent  to- 
cheat  or  defraud  his  creditors,  or  to  hinder  or  delay 
them  in  the  collection  of  their  debts  :  or  » 

2.  Is  about  to  make  such  sale,  conveyance,  or  dispo- 
sition of  his  property,  with  such  fraudulent  intent :  or 

3.  Is  about  to  remove  his  property,  or  a  mate- 
rial part  thereof,  with  the  intent,  or  to  the  effect,  of 
cheating  or  defrauding  his  creditors,  or  of  hindering  or 
delaying  them  in  the  collection  of  their  debts. 

Garnishees  may  be  summoned,  who  shall  appear  and 
answer,  under  oath,  all  questions  put  to  them,  touching 
the  property  of  every  description  and  credits  of  the 
defendant  in  their  possession  or  under  their  control.^ 


PENNSYLVANIA. 

§  35.  In  this  State  the  writ  of  domestic  attachment 
issues  against  any  debtor,  being  an  inhabitant  of  the 
State,  if  such  debtor  shall  have  absconded  from  the 
place  of  his  usual  abode  wdthin  the  same,  or  shall  have 
remained  absent  from  the  State,  or  shall  have  confined 
himself  in  his  own  house,  or  concealed  himself  else- 
where, with  design,  in  either  case,  to  defraud  his  cred- 
itors. And  the  like  proceedings  may  be  had  if  a  debtor, 
not  having  become  an  inhabitant  of  the   State,  shall 

1  Ohio  Code  of  Procedure,  of  1853,  Ch.  III. 

[57] 


§  35  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

confine  or  conceal  himself  within  the  county,  with 
intent  to  avoid  the  service  of  a  process,  and  to  defraud 
his  creditors. 

This  writ  does  not  issue,  except  upon  oath  or  affirma- 
tion, previously  made  by  a  creditor,  or  by  some  person 
in  his  behalf,  of  the  truth  of  his  debt,  and  of  the  facts 
upon  which  the  attachment  shall  be  founded.  It  com- 
mancjs  the  officer  to  attach  the  goods  and  chattels, 
lands  and  tenements  of  the  defendant,  and  to  summon 
garnishees. 

Upon  the  writ  being  executed  the  court  appoints 
three  trustees,  to  whom  the  officer  delivers  the  personal 
property  attached  ;  and  the  trustees  thereupon  publish 
notice  in  a  newspaper,  requiring  all  persons  indebted 
to  the  defendant,  or  holding  property  belonging  to  him, 
to  pay  and  deliver  the  same  to  them,  and  also  desiring 
all  creditors  of  the  defendant  to  present  their  respective 
accounts  or  demands. 

All  the  estate  of  the  defendant  attached  or  after- 
wards discovered  by  the  trustees  vests  in  the  trustees, 
and  they  may  sue  for  and  recover  the  same  in  their 
own  names.  They  are  authorized  to  summon  all  per- 
sons residing  in  the  county,  supposed  to  be  indebted  to 
the  defendant,  and  examine  them  on  oath,  as  they  shall 
think  fit,  touching  the  real  or  personal  estate  of  the 
defendajit,  and  such  other  things  as  may  tend  to  dis- 
close their  estates,  or  their  secret  grants  ;  or  alienation 
of  their  efiects.  If  such  persons  reside  in  another 
county  the  trustees  may  send  interrogatories  in  writing 
and  examine  them  to  th6  same  effect. 

The  trustees  may  issue  warrants  commanding  houses, 
chambers,  shops,  stores,  and  warehouses  of  the  defend- 
ant to  be  broken  open,  and  any  trunks  or  chests  of  the 
[58] 


CH.  I.]  LEADING    STATUTORY    rROTISIONS.  §  35 

defendant,  in  which  his  goods  or  effects,  books  of  ac- 
count, or  papers  relating  to  his  estate,  shall  be,  or  shall 
be  reputed  to  be,  to  be  seized  for  the  benefit  of  his 
creditors. 

They  are  empowered  to  recover  any  property  fraud- 
ulently disposed  of  by  the  defendant,  and  they  may 
redeem  mortgaged  property. 

They  are  authorized  to  sell  the  estate,  real  and  per- 
sonal, of  the  defendant  which  has  become  vested  in 
them,  and  to  assign  any  or  all  of  the  debts  due  or  to 
become  due  to  him,  and  the  purchaser  or  grantee  may 
sue  for  and  recover  such  property  or  debts,  in  his  own 
name,  and  to  his  own  use. 

The  trustees  then  fix  a  day,  and  proceed  to  hear  the 
proofs  of  all  creditors  of  the  defendant  of  their  respect- 
ive claims,  and  having  stated  their  accounts,  and  ascer- 
tained the  proportionate  sum  payable  to  each  creditor, 
they  file  their  report  of  the  same  in  the  office  of  the 
prothonotary ;  and  if  no  exceptions  to  the  report  be 
filed  within  a  limited  time,  they  proceed  to  distribute 
the  money,  ratably  and  without  preference  among  all 
the  creditors  who  have  proved  their  claims. 

The  death  of  the  defendant  after  the  issuing  of  an 
attachment,  does  not  abate  or  otherwise  afiect  the  pro- 
ceedings thereon. 

"No  second  or  other  attachment  can  be  issued  against, 
or  served  upon,  the  estate  or  effects  of  the  same  de- 
fendant, except  those  issued  into  another  county,  unless 
the  first  attachment  be  not  executed,  or  be  dissolved  by 
the  court.^ 

The  writ  of  foreicrn  attachment  lies  against  a  foreign 


1  Dunlop's  Laws  of  Pennsylvania,  2d  Ed.,  pp.  757-763. 

r59"i 


[59] 


§  36  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

corporation,  and  against  any  person  not  residing  within 
the  State,  and  not  being  within  the  county  at  the  time 
the  writ  issues.  Under  it  real  and  personal  estate  may 
be  attached,  and  garnishees  summoned,  who  are  re- 
quired to  answer,  under  oath,  such  interrogatories  as 
the  plaintiff  may  propound,  touching  the  estate  and 
effects  of  the  defendant  in  their  hands,  or  due  or  owing 
from  them  to  the  defendant. 

A  writ  of  attachment  also  issues  against  a  person  un- 
der sentence  of  imprisonment,  upon  conviction  of  crime. 

The  writ  of  foreign  attachment  seems  to  issue  as  a 
matter  of  right,  without  the  necessity  of  affidavit,  and 
the  benefit  of  it  enures  to  the  attaching  creditor,  and 
not  to  all  his  creditors,  as  in  the  case  of  the  domestic 
attachment.-^ 


RHODE     ISLAND. 

§  36.  Whenever  a  writ  of  arrest,  or  other  writ  au- 
thorizing an  arrest,  shall  be  delivered  to  an  officer  for 
service,  he  shall  use  his  best  endeavors  to  arrest  the 
body  of  the  defendant ;  but  if  he  cannot  find  the  body 
of  the  defendant  he  shall  attach  his  goods  and  chattels, 
to  the  value  commanded  in  the  writ ;  and  when  any 
attachment  is  made  as  aforesaid,  the  same  shall  be  suffi- 
cient to  bring  the  cause  to  trial.^ 

When  any  person  shall  reside  or  be  absent  out  of 
this  State,  or  shall  conceal  himself  therein  so  that  his 
body  cannot  be  arrested,  and  when  any  incorporated 
company  established  out  of  this  State,  shall  be  indebted 

^  Dunlop's  Laws  of  Ponnsylvania,  pp.  740-74G. 
2  Public  Laws  of  Rhode  Island,  113. 

[60] 


CH.  I.]  LEADING    STATUTORY    PROVISIONS.  §  37 

or  liable  to  any  person,  then  the  personal  estate  of  such 
absent  or  concealed  person  or  foreign  corporation, 
lodged  or  lying  in  the  hands  of  their  attorney,  agent, 
flictor,  trustee,  or  debtor,  shall  be  liable  to  be  attached, 
the  plaintiff  giving  special  order  therefor,  on  the  back 
of  the  writ,  to  answer  any  just  debt  or  demand;  and 
the  serving  of  any  person  or  body  corporate,  or  any 
member  of  any  firm  or  copartnership  who  have  such 
personal  estate  in  their  hands,  with  a  copy  of  a  writ 
taken  out  against  such  absent  or  concealed  person  or 
foreign  corporation,  shall  be  a  good  service  of  said 
writ.^ 

The  garnishee  is  to  render  an  account  on  oath  of 
what  estate  he  had  of  the  defendant  at  the  time  of  the 
service  of  the  writ. 


SOUTH    CAROLINA. 

§  37.  In  the  case  of  a  debtor  who  is  a  non-resident, 
or  a  citizen  who  has  been  absent  more  than  a  year  and 
a  day,  or  a  debtor  who  absconds,  or  is  removing  out  of 
the  county,  or  conceals  himself,  so  that  the  ordinary 
process  of  law  cannot  be  served  upon  him,  his  creditor, 
wherever  residing,  may  obtain  a  writ  of  attachment 
against  his  estate,  real  and  personal.  The  writ  is  de- 
mandable  of  common  right,  on  the  plaintiff's  giving 
bond  to  the  defendant  in  double  the  amount  for  which 
the  attachment  issues,  conditioned  to  pay  all  damages 
which  the  defendant  may  sustain  by  reason  of  the  ille- 
Q;al  issuino;  of  the  attachment. 

1  Public  Laws  of  Ehode  Island,  118. 

6  [61] 


§  38  LEADING    STATUTORY    PROVISIONS.  [cil.  I. 

It  is  the  duty  of  any  garnishee  to  surrender  the 
property  of  the  absent  defendant  in  his  hands,  unless 
he  claims  the  same,  under  oath,  as  a  creditor  in  posses- 
sion, or  to  give  bond  for  the  safe  keeping  and  forthcom- 
ing of  the  same  when  required.  Unless  he  comply 
with  these  requisitions,  a  personal  judgment  may  be 
rendered  against  him. 

Upon  the  return  of  a  writ  of  attachment,  it  is  the 
duty  of  the  court  of  common  pleas,  or  any  law  judge 
at  chambers  to  appoint  one  or  more  assignees,  with 
full  power  and  authority  to  receive  and  take  from  the 
sheriff  or  garnishee  all  the  estate,  real  and  personal,  of 
•the  absent  debtor,  and  to  collect  the  debts  and  receive 
the  rents  and  profits  of  the  realty,  and  whose  duty  it 
shall  be  to  dispose  of  the  same  according  to  the  order 
of  the  court  of  common  pleas. 

There  is  some  difference  between  foreign  and  domes- 
tic attachments,  but  it  does  not  seem  necessary  to  be 
noted.^ 


TENNESSEE. 

§  38.  Where  a  debtor  has  removed  or  is  removing 
himself  out  of  the  county  privately,  or  so  absconds  or 
conceals  himself  that  the  ordinary  process  of  law  can- 
riot  be  served  on  him ;  or  is  removing  or  about  to  re- 
move himself  or  his  property  beyond  the  limits  of  the. 


^  For  this  notice  of  the  Attacliment  Law  of  this  State,  I  am  indebted  to 
"  The  Law  of  Debtor  and  Creditor  in  the  United  States  and  Canada  ; "  a 
very  accurate  and  useful  work,  prepared  by  James  P.  Holcombe,  Esq.,  in 
1848. 

[62] 


CII.  I.]  LEADING    STATUTORY    PROVISIONS.  §  38 

State ;  or  shall  be  absconding  or  concealing  himself  or 
his  property  or  effects ;  an  attachment  may  be  obtained. 
In  order  to  obtain  an  attachment,  complaint  must  be 
made  on  oath  by  the  creditor,  his  attorney,  agent,  or 
factor,  setting  forth  that  the  debtor  is  doing  some  one 
of  the  acts  stated  above  ;  and  a  bond  must  be  given  by 
the  plaintiff,  his  attorney,  agent,  or  factor,  payable  to 
the  defendant,  in  double  the  sum  for  which  the  com- 
plaint is  made,  conditioned  for  satisfying  all  costs  which 
shall  be  awarded  to  the  defendant  in  case  the  plaintiff 
shall  be  cast  in  the  suit,  and  also  all  damages  which 
shall  be  recovered  against  the  plaintiff  in  any  suit  or 
suits  which  may  be  brought  against  him  for  wrongfully 
suing  out  the  attachment. 

The  writ  commands  the  attachment  of  the  estate  of 
the  debtor  wherever  it  may  be  found,  or  in  the  hands 
of  any  persons  indebted  to,  or  having  any  of  the  effects 
of,  the  defendant;  and  under  it  garnishees  are  sum- 
moned, who  are  required  to  answer  on  oath  as  to  their 
indebtedness  to  the  defendant,  and  what  effects  they 
have  and  had  of  the  defendant  in  their  hands  at  the 
time  of  serving  the  writ,  and  what  effects  or  debts  of 
the  defendant  there  are  in  the  hands  of  any  other,  and 
what,  person,  to  their  knowledge  or  beUef.^ 

In  the  case  of  non-resident  debtors,  having  any  real 
or  personal  property  or  choses  in  action  within  the 
State,  it  is  required,  in  order  to  obtain  an  attachment, 
to  file  a  bill  in  chancery,  and  make  af&davit  and  give 
bond  as  in  the  cases  above  mentioned.^ 


1  Caruthers  &  Nicholson's  Digest,  101,  102,  103;  and  Nicliolson's  Supple- 
ment, 12. 

2  Caruthers  &  Nicholson's  Digest,  lOG. 

t63] 


§  39  LEADING    STATUTORY   PROVISIONS.  [cil.  T. 

A  judicial  attachment  issues  when  the  sheriff  returns 
"  that  the  defendant  is  not  found."  ^ 


TEXAS. 

§  39.  Whenever  a  writ  of  summons  issues  from  any 
court  of  this  State,  in  any  civil  suit,  and  the  officer  re- 
turns that  the  defendant  is  not  to  be  found  in  his 
county,  the  plaintiff  may  sue  out  a  writ  of  attachment, 
returnable  in  the  same  manner  as  original  writs ;  and 
if  the  officer  shall  return  any  property  by  him  attached, 
and  the  defendant  shall  fail  to  appear  and  plead  within 
the  time  limited  by  the  law  regulating  pleadings,  the 
plaintiff  shall  be  entitled  to  judgment  as  in  ordinary 
suits ;  and  the  property  attached,  if  not  replevied,  or 
released  by  special  bail,  shall  remain  in  the  custody  of 
the  officer,  until  final  judgment. 

Original  attachments  are  issued,  upon  the  party  ap- 
plying for  the  same,  his  agent  or  attorney,  making  an 
affidavit  in  writing,  stating  that  the  defendant  is  justly 
indebted  to  the  plaintiff^  and  the  amount  of  the  de- 
mand ;  and  that  the  defendant  is  not  a  resident  of  the 
State  ;  or  that  he  is  about  to  remove  out  of  the  State ; 
or  that  he  secretes  himself  so  that  the  ordinary  process 
of  law'  cannot  be  served  on  him  ;  or  that  he  is  about  to 
remove  his  property  beyond  this  State,  and  that  thereby 
the  plaintiff  will  probably  lose  the  debt ;  and  he  shall 
also  swear  that  tlie  attachment  is  not  sued  out  foT  the 
purpose  of  injuring  the  defendant. 

At  the  time  of  making  such  affidavit,  the  plaintiff, 


^  Caruthers  &  Nicholson's  Digest,  108. 

[G4] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  40 

his  agent  or  attorney,  shall  give  bond,  with  two  or 
more  good  and  sufficient  sureties,  payable  to  the  de- 
fendant, in  at  least  double  the  amount  sworn  to  be  due, 
conditioned  that  the  plaintiff  will  prosecute  his  suit  to 
effect,  and  pay  such  damages  as  shall  be  adjudged 
against  him  for  wrongfully  suing  out  such  attachment.  . 

The  writ  of  attachment  goes  against  the  property  of 
the  debtor,  wherever  the  same  may  be  found. 

It  may  issue  in  all  cases,  although  the  debt  or  de- 
mand be  not  due;  but  no  judgment  shall  be  rendered 
until  the  demand  becomes  due. 

Where  an  attachment,  either  original  or  judicial,  is 
issued,  the  plaintiff  may  have  at  the  same  time  a  writ 
of  garnishment,  against  any  person  supposed  to  be 
indebted  to,  or  to  have  any  of  the  effects  of,  the  de- 
fendant. Garnishees  summoned  under  this  writ  must 
answer  on  oath  as  to  their  indebtedness,  or  that  of 
others,  to  the  defendant,  and  as  to  the  effects  of  the 
defendant  they  have  in  their  possession,  and  had  at  the 
time  of  the  garnishment.^ 


VERMONT. 

§  40.  The  ordinary  mode  of  process  in  civil  causes,  is 
by  wTit  of  summons  or  attachment. 

Writs  of  attachment  may  issue  against  the  goods, 
chattels,  or  estate  of  the  defendant,  and  for  want 
thereof  against  his  body. 

No  writ  shall  issue  unless  there  be  sufficient  security 


Hartley's  Digest  of  Texas  Laws,  of  1850,  pp.  93-100. 

6  ='^  [  65  ] 


•    §  40  LEADING    STATUTORY    PROVISIONS.  [CH.  I. 

given  to  the  defendant,  by  way  of  recognizance,  by 
some  person  other  than  the  plaintiff,  to  the  satisfaction 
of  the  authority  signing  the  writ,  that  the  phiintiff 
shall  prosecute  his  writ  with  effect,  and  shall  answer  all 
damages,  if  judgment  be  rendered  against  him.^ 

All  actions  founded  on  any  contract,  express  or  im- 
plied, made  and  entered  into  since  the  first  day  of 
January,  1839,  and  all  actions,  founded  on  any  con- 
tract where  the  defendant  has  absconded  from,  or  is 
resident  out  of,  this  State,  or  is  concealed  within  this 
State,  may  be  commenced  by  trustee  process. 

The  writ,  in  such  case,  authorizes  the  attachment  of 
the  goods,  chattels,  or  estate  of  the  defendant,  in  his 
own  hands,  and  also  any  goods,  effects,  or  credits,  in  the 
hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits  of 
the  defendant,  intrusted  or  deposited  in  his  hands  or 
possession,  or  which  shall  come  into  his  hands  or  pos- 
session after  the  service  of  the  writ  and  before  disclo- 
sure is  made,  may  be  summoned  as  a  trustee,  and  such 
goods,  effects,  and  credits  shall  thereby  be  attached,  and 
held  to  respond  the  final  judgment  in  the  suit.  What- 
ever any  trustee  may  have  of  the  defendant's  in  his 
hands  or  possession,  which  he  holds  against  law  or 
equity,  may  be  attached  by  this  process. 

Any  debt  or  legacy,  due  from  an  executor  or  admin- 
istrator, and  any  other  goods,  effects,  or  credits,  in  the 
hands  of  an  executor  or  administrator,  as  such,  may  be 
^    attached  in  his  hands  by  the  trustee  process. 

All  corporations  may  be  summoned  as  trustees. 


1  Williams'  Compilation  of  Vermont  LaM's,  of  1851,  p.  242. 

[C6] 


CH.  I.]  LEADING   STATUTORY   PROVISIONS.  §  41 

No  person  shall  be  adjudged  a  trustee  dn  either  of 
the  cases  following,  to  wit :  — 

1.  By  reason  of  any  money  or  other  thing  due  from 
him  to  the  defendant,  unless  it  is,  at  the  time  of  the 
service  of  the  writ  on  lihn,  due  absolutely  and  without 
depending  on  any  contingency;  nor  2.  By  reason  of 
any  debt  due  from  him  on  a  judgment,  so  long  as  he  is 
liable  to  an  execution  on  the  judgment. 

Any  money,  or  other  thing,  due  to  the  defendant 
may  be  attached  by  the  trustee  process  before  it  has 
become  payable,  provided  it  be  due  absolutely  and 
without  any  contingency ;  but  the  trustee  shall  not  be 
compelled  to  pay  or  deliver  it  before  the  time  appointed 
therefor  by  the  contract. 

Trustees  may  be  examined  on  oath,  touching  the 
effects,  etc.,  of  the  defendant  in  their  hands ;  but  the 
answ-er  of  a  trustee  under  oath  is  not  conclusive  in 
deciding  how  far  he  is  chargeable ;  but  either  party 
may  allege  and  prove  any  facts  that  may  be  material 
in  deciding  that  question.^ 

There  are  numerous  provisions  in  the  laws  of  this 
State  in  relation  to  trustees,  but  it  is  not  deemed  neces- 
sary to  present  them  here. 


VIRGINIA. 

§  41.  When  any  suit  is  instituted  for  any  debt,  or  for 
damages  for  breach  of  any  contract,  on  affidavit  stating 
the  amount  and  justice  of  the  claim,  that  there  is  a 
present  cause  of  action  therefor,  that  the  defendant  is 


1  Williams'  Compilation  of  Vermont  Laws,  of  1851,  pp.  254-258. 

[67] 


§  41  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

not  a  resident  of  this  State,  and  that  the  affiant  beheves 
he  has  estate  or  debts  due  him  within  the  county  or 
corporation  in  which  the  suit  is,  the  plaintiff  may  forth- 
with sue  out  of  the  clerk's  office  an  attachment  against 
the  estate  of  the  non-resident  defendant  for  the  amount 
so  stated. 

On  affidavit  at  the  time  of  or  after  the  institution  of 
any  suit,  that  the  plaintiff's  claim  is  believed  to  be  just, 
and,  where  the  suit  is  to  recover  specific  personal 
property,  stating  the  nature,  and,  according  to  the  affi- 
ant's belief,  the  value  of  such  property,  and  the  proba- 
ble amount  of  damages  the  plaintifi'  will  recover  for  the 
detention  thereof,  or  where  it  is  to  recover  money  for 
any  claim  or  damages  for  any  wrong,  stating  a  certain 
sum  which  (at  the  least)  the  affiant  believes  the  plain- 
tiff is  entitled  to,  or  ought  to  recover,  and  an  affidavit 
also,  that  the  affiant  believes  that  the  defendant  is 
removing  or  intends  to  remove  such  specific  property, 
or  his  own  estate,  or  the  proceeds  of  the  sale  of  his 
property,  or  a  material  part  of  such  estate  or  proceeds, 
out  of  this  State,  so  that  process  of  execution  on  a 
judgment  in  said  suit,  when  it  is  obtained,  will  be  una- 
vailing; in  any  such  case  the  clerk  shall  issue  an 
attachment.  If  the  suit  be  for  specific  property,  the 
attachment  may  be  against  th-e  specific  property  sued 
for,  and  against  the  defendant's  estate,  for  so  much  as  is 
sufficient  to  satisfy  the  probable  damages  for  its  deten- 
tion; or,  at  the  option  of  the  plaintiff,  against  the  defend- 
ant's estate,  for  the  value  of  such  specific  property,  and 
the  damages  for  its  detention.  If  the  suit  be  to  recover 
money  for  a  claim,  or  damages  for  a  wrong,  tlie  attach- 
ment shall  be  against  the  defendant's  estate,  for  the 
amount  specified  in  the  affidavit,  as  that .  which  the 
[68] 


CH.  l]  lk\ding  statutory  provisions.  §  42 

affiant  believes  the  plaintiff  is  entitled  to  or  ought  to 
recover. 

An  attachment  may  issue  before  a  claim  is  due  and 
payable,  upon  complaint  supported  by  affidavit  that  the 
debtor  intends  to  remove,  or  is  removing,  or  has  re- 
moved his  effects,  out  of  this  State,  so  that  there  will 
probably  not  be  therein  sufficient  effects  of  the  debtor 
to  satisfy  the  claim  when  judgment  is  obtained  there- 
for, should  the  ordinary  process  of  the  law  be  used  to 
obtain  such  judgment;  and  upon  further  affidavit  of 
the  amount  and  justice  of  the  claim,  and  at  what  time 
the  same  is  payable. 

An  attachment  also  lies  for  rent,  where  complaint  is 
made,  supported  by  affidavit,  that  the  tenant  intends  to 
remove,  or  is  removing,  or  has  within  thirty  days 
removed,  his  effects  from  the  leased  premises. 

Attachments  (except  where  sued  out  speciallj^  against 
specified  property)  may  be  levied  upon  any  estate,  real 
or  personal,  of  the  defendant,  and  garnishees  may  be 
summoned,  who  are  required  to  answer  on  oath. 

Equitable  claims  for  money  or  property  may  be  en- 
forced by  suit  and  attachment  in  chancery,  upon  affida- 
vit being  made  as  in  actions  at  law.-^ 


WISCONSIN. 

§  42.  In  order  to  obtain  an  attachment,  the  plaintiff, 
or  some  person  in  his  behalf,  must  make  an  affidavit, 
stating  that  the  defendant  is  indebted  to  the  plaintiff 
and  specifying  the  amount   of  such  indebtedness,  as 

^  Kevised  Statutes  of  Virginia,  of  18-49,  pp.  C00-G05. 

[69] 


§  42  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

near  as  may  be,  over  and  above  all  legal  set-offs,  and 
that  the  same  is  due  upon  contract,  express  or  implied, 
or  upon  judgment  or  decree,  and  that  the  deponent 
knows,  or  has  good  reason  to  believe,  either, 

1.  That  the  defendant  has  absconded,  or  is  about  to 
abscond  from  this  State,  or  that  he  is  concealed  therein 
to  the  injury  of  his  creditors:  or 

2.  That  the  defendant  has  assigned,  disposed  of,  or 
concealed,  or  is  about  to  assign,  dispose  of,  or  conceal 
any  of  his  property,. with  intent  to  defraud  his  cred- 
itors: or 

3.  That  the  defendant  has  removed,  or  is  about  to 
remove,  any  of  his  property  out  of  this  State,  with 
intent  to  defraud  his  creditors :  or 

4.  That  he  fraudulently  contracted  the  debt,  or 
incurred  the  obligation,  respecting  wdiich  the  suit  is 
broufj;ht:  or 

5.  That  the  defendant  is  not  a  resident  of  this 
State :  or 

6.  That  the  defendant  is  a  foreign  corporation :  or 

7.  That  the  defendant  has  fraudulently  conveyed  or 
disposed  of  his  property,  or  a  part  of  it,  or  is  about 
fraudulently  to  convey  or  dispose  of  the  same,  or  a 
part  of  it,  with  intent  to  defraud  his  creditors. 

The  writ  authorizes  the  attachment  of  so  much  of 
the  lands,  tenements,  goods,  chattels,  moneys,  and 
effects  of  the  defendant,  not  exempt  from  execution, 
wheresoever  the  same  may  be  found  within  the  county, 
as  will  be  sufficient  to  satisfy  the  plaintiff's  demand. 

If  the  plaintiff,  or  any  one  in  his  behalf,  make  affida- 
vit that  he  verily  believes  that  any  person  (naming 
him)  has  property,  credits,  or  effects  (describing  the 
same),  in  his  possession  belonging  to  the  defendant,  or 
[70] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  43 

is  indebted  to  the  defendant,  and  deliver  the  same  to 
the  officer  having  tlie  writ,  the  officer,  if  he  cannot 
attach  such  property  and  get  possession  thereof,  shall 
summon  such  person  as  garnishee ;  who  is  required  to 
answer  under  oath  all  questions  put  to  him  touching 
the  property,  credits,  and  effects  of  the  defendant  in 
his  possession,  or  within  his  knowledge,  and  as  to  all 
debts  due  or  to  become  due  from  him  to  the  defend- 
ant.i 


TERRITORY    OF   MINESOTA. 

§  43.  In  an  action  for  the  recovery  of  money,  the 
plaintiff  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterwards,  may  have  the  property  of  the  defend- 
ant attached,  in  the  manner  hereinafter  stated,  as  secu- 
rity for  the  satisfaction  of  such  judgment  as  the  plaintiff 
may  recover. 

The  warrant  of  attachment  is  issued  whenever  the 
applicant,  or  some  other  person,  makes  affidavit  that  a 
cause  of  action  exists  against  the  defendant,  specifying 
the  amount  of  the  claim,  and  the  ground  thereof,  and 
that,  as  the  applicant  verily  believes,  the  defendant  is, 
either, 

1.  A  foreign  corporation  :  or 

2.  Is  not  a  resident  of  this  Territory :  or 

3.  Has  departed  therefrom  with  the  intent  to  hinder 
or  delay  his  creditors,  or  to  avoid  the  service  of  a 
summons :  or 


Revised  Statutes  of  Wisconsin,  of  1849,  pp.  587-592. 

[71] 


§  44  LEADING    STATUTORY    PROVISIONS.  [CH.  I. 

4.  Has  assigned,  secreted,  or  disposed  of,  or  is  about 
to  assign,  secrete,  or  dispose  of,  his  property,  so  as  to 
hinder  or  delay  his  creditors  :  or 

5.  That  the  debt  was  fraudulently  contracted. 
Before  issuing  the  warrant,  the  plaintiff  must  give  a 

written  undertaking,  with  sufficient  surety,  to  the  effect 
that  if  the  defendant  recover  judgment,  the  plaintiff 
will  pay  all  costs  that  may  be  awarded  to  the  defend- 
ant, and  all  damages  which  he  may  sustain  by  reason 
of  the  attachment,  not  exceeding  the  sum  specified  in 
the  undertaking,  which  shall  be  at  least  two  hundred 
and  fifty  dollars. 

Under  the  warrant  all  property  of  the  defendant 
may  be  attached,  including  his  rights  or  shares  in  the 
stock  of  any  corporation.^ 

Proceedings  against  garnishees  are  not  exclusively 
connected  with  suits  by  attachment,  but  may  be  con- 
ducted in  any  action,  upon  affidavit  being  made,  that 
any  person  has  property,  money,  or  effects,  in  his  hands 
or  under  his  control,  belonging  to  the  defendant,  or  is 
indebted  to  the  defendant. 

A  summons  then  issues  against  the  garnishee,  and  he 
is  required  to  appear  and  answer  under  oath.^ 


TERRITORY    OF    NEW    MEXICO. 

§  44.    Creditors  whose  demands  amount  to  fifty  dol- 
.    lars  or  more,  may  sue  their  debtors  in  the  circuit  court, 
by  attachment,  in  the  following  cases  :  — 

1  Revised  Statutes  of  Minesota,  of  1851,  pp.  34G-349. 
^  Ibid.  p.  451. 

[72] 


CH.  I.]  LEADING    STATUTORY   PROVISIONS.  §  44 

1.  When  the  debtor  is  not  a  resident  of,  nor  resides 
in,  this  Territory  : 

2.  When  the  debtor  has  concealed  himself,  or  ab- 
sconded, or  absented  himself  from  his  usual  place  of 
abode  in  this  Territory,  so  that  the  ordinary  process  of 
law  cannot  be  passed  upon  him  : 

3.  When  the  debtor  is  about  to  remove  his  property 
or  effects  out  of  this  Territory  ;  or  has  fraudulently 
concealed  or  disposed  of  his  property  or  effects,  so  as  to 
defraud,  hinder,  or  delay  his  creditors  : 

4.  When  the  creditor  is  about  fraudulently  to  con- 
vey or  assign,  conceal  or  dispose  of  his  property  or 
effects,  so  as  to  hinder,  delay,  or  defraud  his  creditors  : 

5.  When  the  debt  was  contracted  out  of  this  Terri- 
tory, and  the  debtor  has  absconded,  or  secretly  removed 
his  property  or  effects  into  the  Territory,  with  the  in- 
tent to  hinder,  delay,  or  defraud  his  creditors. 

In  order  to  obtain  an  attachment  an  affidavit  must 
be  made  by  the  plaintiff  or  some  person  for  him,  and  a 
bond  executed. 

The  affidavit  must  state  that  the  defendant  is  justly 
indebted  to  the  plaintiff,  after  allowing  all  just  credits 
and  offsets,  in  a  sum  (to  be  specified),  and  on  what  ac- 
count, and  I  that  the  affiant  has  good  reason  to  believe, 
and  does  believe,  the  existence  of  one  or  more  of  the 
causes  above  recited  as  entitling  the  plaintiff  to  sue  by 
attachment. 

The  bond  must  be  executed  by  the  plaintiff  or  some 
responsible  person  as  principal,  and  two  or  more  securi- 
ties, residents  of  the  county  in  which  the  action  is  to  be 
brought,  in  a  sum  at  least  double  the  amount  sworn  to, 
payable  to  this  Territory,  conditioned  that  the  plaintiff 
shall  prosecute  his  action  without  delay  and  with  effect, 
7  [73] 


§  45  LEADING    STATUTORY   PROVISIONS.  [CH.  I. 

and  refund  all  sums  of  money  that  may  be  adjudged  to 
be  refunded  to  the  defendant,  and  pay  all  damages  that 
may  accrue  to  any  defendant  or  garnishee  by  reason  of 
the  attachment,  or  any  process  or  judgment  thereon. 
This  bond  may  be  sued  on,  in  the  name  of  the  Terri- 
tory, by  any  party  injured. 

The  writ  of  attachment  commands  the  sheriff  to  at- 
tach the  defendant  by  all  and  singular  his  lands  and 
tenements,  goods,  moneys,  effects,  and  credits,  in  whose- 
soever hands  they  may  be  found ;  and  under  it  gar- 
nishees may  be  summoned,  who  are  required  to  answer 
on  oath  written  allesrations  and  interroo-atories.^ 


TERRITORY    OF    UTAH. 

§  45.  An  attachment  issues  in  this  Territory,  when 
an  affidavit  is  made  by  a  creditor  that  the  defendant  is 
indebted  to  him  by  note  or  book  account,  and  is  not  a 
resident  of  the  Territory,  or  is  about  to  leave  the  county 
or  Territory,  removing  his  effects  with  the  intention,  as 
affiant  believes,  of  defrauding  his  creditors. 

If  there  be  not  sufficient  property  found  to  satisfy 
the  debt  and  cost,  garnishees  may  be  summoned.^ 

^  Laws  of  New  Mexico,  of  1851,  pp.  39-41. 
"-  Laws  of  Utah,  1851,  p.  62. 

■  [74] 


CHAPTER    II. 

FOR   WHAT   CAUSE   OF   ACTION   AX   ATTACHMENT   MAT   ISSUE. 

§  46.  By  the  custom  of  London  all  attachments  are 
grounded  upon  actions  of  debt.^  And  the  debt  must  be 
of  such  a  nature  as  will  sustain  an  action  at  law.  Equi- 
table debts,  therefore,  are  not  sufficient  to  ground  an 
attachment  upon  ;  such  for  instance  is  a  legacy,  which 
is  recoverable  only  in  the  spiritual  court,  or  in  a  court 
of  equity.  Dividends  due  to  a  creditor  from  the  as- 
signees under  a  commission  of  bankruptcy,  are  also  m 
the  same  predicament,  as  is  all  trust  property,  for  the 
creditor  cannot  sue  for  these  at  law,  but  must  either 
petition  the  chancellor,  or  file  a  bill  in  equity  to  re- 
cover them.  The  debt  also  must  be  due,  or  it  cannot 
sustain  an  attachment.  Thus  no  attachment  can  be 
made  upon  a  bond,  bill,  or  note,  the  day  of  payment 
whereof  is  not  yet  come  ;  nor  for  a  book  debt  for  pay- 
ment of  which  time  has  been  given,  until  such  time  be 
elapsed.^ 

§  47.  In  this  country,  resort  to  this  process,  as  we 
have  seen  in  the  preceding  chapter,  is  in  general 
allowed  only  to  creditors.  It  follows  that  an  attachment 
will  not  lie  for  any  cause  of  action  founded  in  tort.  It 
has,  therefore,  been  held  that  it  cannot  issue  in  an  ac- 


1  Privilegia  Londini,  254.  "  Ashley  on  Attachment,  21,  22. 

[75] 


§   48  CAUSE    OF    ACTION.  [CII.  II. 

tion  of  trover ;  ^  nor  for  a  malicious  prosecution  ;  ^  nor  in 
an  action  for  assault  and  battery ;  ^  nor  will  it  lie  to  re- 
cover the  amount  of  expenses  incurred  for  medical  and 
surgical  services,  and  loss  of  time  during  confinement, 
resulting  from  a  wound  inflicted  by  the  defendant  ;^  nor 
for  damages  alleged  to  have  been  sustained  by  the 
plaintiff,  in  consequence  of  a  wrongful  sale  of  his  prop- 
erty under  execution  f  nor  for  damages  caused  by  a 
collision  between  two  steamboats;^  nor  for  damages 
sustained  by  a  steamboat  running  into  and  destroying 
plaintiff's  house  ; '  nor  to  recover  from  common  carriers 

^damag^es  for  the  loss  of  a  trunk,  where  the  declaration  is 
in  tort^  and  not  in  contract ;  ^  nor  in  an  action  on  the 

i  case  for  money  of  the  plaintiff  stolen  by  the  defendant  ;^ 
nor  in  an  action  for  slander,  under  a  statute  author- 
izing an  attachment  for  torts,  trespasses,  or  injuries  ac- 
tually done  to  property,  real  or  personal 


10 


§  48.  Who  may  be  regarded  as  a  creditor,  entitled  to 
the  remedy  by  attachment,  may  be  often  a  debatable 
question.  A  creditor  is  defined  by  a  recent  waiter  to 
be  one  who  has  a  right  to  require  of  another  the  fulfil- 


1  Marsliall  v.  White,  8  Porter,  551  ;  Hynson  v.  Taylor,  3  Arkansas,  552; 
Hutchinson  v.  Lamb,  Brayton,  234. 

-'  Stanly  r.  Ogden,  2  Root,  259  ;  Hynson  v.  Taylor,  3  Arkansas,  552. 
3  Minga  V.  ZoUicoffer,  1  Iredell,  (Law)  278. 

*  Prewitt  1-.  Carraichael,  2  Louisiana  Annual,  943. 

*  Greiner  v.  Prendergast,  3  Louisiana  Annual,  376. 
'  Swagar  v.  Pierce,  3  Louisiana  Annual,  435. 

'  Holmes  v.  Barclay,  4  Louisiana  Annual,  63;  McDonald  v.  Forsyth,  13 
Missouri,  549.     See,  also,  Irish  v.  Wright,  12  Ptobinson  (La.),  503  ;  Hill  v. 
Chatfield,  4  Louisiana  Annual,  562. 
(' «  Porter  v.  Hildebrand,  14  Penn.  State,  129. 
;'*  Piscataqua  Bank  v.  Tiirnley,  1  Miles,  312. 

1"  Sargeant  v.  Helmbold,  Harper,  219. 

[76] 


CE.  II.]  CAUSE    OF   ACTION.  §  49 

ment  of  a  contract  or  obligation.^  Another  writer  con- 
siders a  creditor  to  be  one  who  gives  or  has  given  credit 
to  another  ;  one  who  trusts  another ;  one  to  whom  a 
debt  is  due :  in  a  larger  sense,  one  to  whom  any  obli- 
gation is  due.^  The  great  American  lexicographer  de-  ?^^7^ 
fines  the  word  thus  —  "A  person  to  whom  a  sum  of 
money  or  other  thing  is  due,  by  obligation,  promise,  or 
in  law."  In  the  Civil  Law,  he  is  said  to  be  a  debtor, 
who  owes  reparation  or  damages  for  the  non-perform- 
ance of  his  contract ;  ^  and  of  necessity  he  is  a  creditor 
who  has  the  right  to  claim  such  reparation  or  damages. 
The  word  is  certainly  susceptible  of  latitudinous  con- 
struction, and  it  is  not  perhaps  as  important  here  to 
arrive  at  its  perfectly  correct  meaning  in  the  abstract, 
as  to  ascertain  the  views  of  it  which  have  received  ju- 
dicial sanction,  in  connection  with  the  resort  to  an 
attachment. 

§  49.  In  New  York,  where  the  plaintiff  was  required 
to  swear  that  the  defendant  is  indehted  to  him,  the  court 
said  it  did  not  follow  that  the  demand  is  to  be  so  cer- 
tain as  to  fall  within  the  technical  definition  of  a  debt, 
or  as  to  be  susceptible  of  liquidation  without  the  inter- 
vention of  a  jury.  Being  indehted  is  synonymous  with 
oiving  ;  it  is  sufficient,  therefore,  if  the  demand  arise  on 
contract.  And  it  was  held  that  an  attachment  would 
lie  in  an  action  founded  on  a  bill  of  lading,  whether  the 
goods  shipped  were  not  delivered,  or  were  delivered  in 
a  damao^ed  condition.* 


^  1  Bouviers  Law  Dictionary,  383. 

2  1  Burrill's  Law  Dictionary,  301. 

3  Hunt  V.  Xorris,  4  Martin,  532  ;  1  Pothler  on  Obligations,  159. 

*  Lenox  v.  Howland,  3  Caifles,  323  ;  In  re  Marty,  3  Barbour,  Sup.  Ct.  229. 

7*  [77] 


§  50  CAUSE    OF   ACTION.  [CH.  II. 

§  50.  In  Louisiana,  under  a  statute  which  authorized 
an  attachment  to  issue  "  whenever  a  petition  shall  be 
presented  for  the  recovery  of  a  debt,"  an  action  was 
brought  by  attachment  to  recover  the  value  of  certain 
goods  shipped  on  a  steamboat  and  not  delivered  accord- 
ing to  the  terms  of  the  bill  of  lading,  and  the  case  was 
considered  to  be  within  the  statute ;  the  court  holding 
that  all  obligations  arising  from  contracts,  either  ex- 
press or  implied,  either  for  the  payment  of  money  or 
the  delivery  of  goods,  create  a  debt  on  the  part  of  the 
obligor,  for  which  an  attachment  may  issue,  whenever 
the  amount  may  be  fairly  ascertained  by  the  oath  of 
the  obligee.^ 

In  the  same  State  it  was  held  that  an  attachment 
would  lie,  in  an  action  by  the  purchaser  against  the 
vendor  of  a  slave,  alleged  to  have  absconded  from  the 
plaintiff  and  to  have  returned  to  the  vendor,  who  har- 
bored him  and  refused  to  give  him  up,  to  recover  the 
value  of  the  slave,  and  of  his  services  during  his  deten- 
tion, and  damages  for  expenses  incurred  in  demanding 
him,  and  for  counsel  fees  :  the  court  holding  that  the 
retention  of  the  slave  was  a  violation  of  the  contract  of 
sale,  and  that  the  responsibility  thereby  incurred  was 
not  diminished  by  an  outrage,  perhaps  a  crime,  being 
superadded  to  it.^  The  law  under  which  the  writ  was 
sued'  out  in  this  case  was  Art.  242  of  the  Louisiana 
Code  of  Practice,  in  these  words  :  "  The  property  of  a 
debtor  may  be  attached  in  the  hands  of  third  persons 
by  his  creditors,  in  order  to  secure  the  payment  of  a 
cfebt,  whatever  may  be  its  nature,  whether  the  amount 

^  Hunt  V.  Norris,  4  Martin,  517. 

^  Crane  c.  Lewis,  4  Louisiansf  Annual,  320. 

[78] 


CH.  II.]  CAUSE    OF   ACTION.  §  52 

be  liquidated  or  not,  provided  the  term  of  payment 
have  arrived,  and  the  creditor  who  prays  the  attach- 
ment, state  expressly  and  positively  the  amount  which 
he  claims;"  and  Art.  243  requires  the  creditor  to  "de- 
clare under  oath  the  amount  of  the  sum  due  him." 

§  51.  In  Pennsylvania,  nnder  a  statute  which,  by  a 
strict  and  Hteral  construction,  confined  the  writ  of  attach- 
ment to  cases  of  debt,  the  following  case  arose.  The  de- 
fendant bound  himself  to  deliver  to  the  plaintiff  teas  of 
a  certain  quality,  and  suited  to  a  particular  market ;  and 
on  failure  to  do  so,  to' pay  the  difference  between  teas 
of  such  quality,  and  such  as  should  be  delivered.  Teas, 
agreeably  to  contract,  were  not  dehvered ;  and  the 
plaintiff  commenced  suit  by  attachment,  swearing  that 
the  difference  amounted  to  P,500.  It  was  held  that 
this  was  a  debt  within  the  meaning  of  the  statute,  for 
which  an  attachment  would  lie.  "It  is  not  every 
claim,"  said  the  court,  "  that,  upon  a  fair  construction  of 
this  law,  or  even  in  common  parlance,  can  be  denomi- 
nated a  debt.  For,  in  the  first  place,  the  demand  must 
arise  out  of  a  contract,  without  which  no  debt  can  be 
created ;  and  the  measure  of  the  damages  must  be  such 
as  the  plaintiff  can  aver  to  be  due  ;  without  which,  spe- 
cial bail  cannot  regularly  be  demanded."  ^  • 

§  52.  In  Maryland,  under  a  statute  requiring  the 
plaintiff  to  make  oath  that  the  defendant  is  hand  fide 
indebted  to  him,  it  w^as  held  that  the  term  "  indebted  " 
was  not  to  be  construed  in  a  technical  or  strict  legal 


1  Fisher  v.  Consequa,  2  W^asliington,  C.  C.  382.     See  also  Redwood  v. 
Consequa,  2  Browne,  G2. 

[79] 


§  54  CAUSE    OF   ACTION.  [ciI.  II. 

• 

sense  ;  but  that  where  the  contract  sued  upon  furnished 
a  standard  by  which  the  amount  due  could  be  so  clearly 
ascertained  as  to  enable  the  plaintiff  to  aver  it  in  his 
affidavit,  or  the  jury,  by  their  verdict,  to  find  it,  afi 
attachment  might  issue.^ 

§  53.  In  Alabama,  where  the  statute  used  the  words 
"debt  or  demand,"  and  required  the  plaintiff  "to  swear 
to  the  amount  of  the  sum  due,"  it  v/as  held  that  an 
action  might  be  commenced  by  attachment,  to  recover 
for  a  breach  of  warranty  of  the  soundness  of  a  slave ; 
the  damage  for  the  breach  of  warranty  being  the  value 
of  the  slave  at  the  time  of  the  warranty,  and  a  sum 
capable  of  ascertainment,  and  of  which  the  plaintiff 
might  make  affidavit ;  and  the  cause  of  action  arising 
out  of  contract,  and  the  measure  of  the  damages  ascer- 
tained by  the  law  of  the  contract.^  In  the  same  State, 
under  another  provision,  authorizing  one  non-resident 
to  sue  another  non-resident  by  attachment,  where  the 
defendant  is  indcUcd  to  the  plaintiff,  either  by  judg- 
ment, note,  or  otherwise,  it  was  held  that  those  terms 
did  not  extend  beyond  causes  of  action  for  which  either 
debt  or  indebitatus  asmmpsit  would  lie.^ 

§<{)4.  In  Mississippi  where  the  "creditor"  was  rc- 
cjuii'ed  "  to  make  oath  to  the  amount  of  his  debt  or 
demand,^'  it  was  held  that  an  attachment  would  lie  to 
recover  damages  for  a  breach  of  covenant.* 


'  Wilson  V.  Wilson,  8  Gill,  192. 
-  Weaver  v.  Puryear,  11  Alabama,  941. 
^  Hazard  v.  Jordan,  12  Alabama,  180. 
^  Woolfolk  V.  Cage,  Walker,  300. 

[SO] 


CH.  II.]  CAUSE    OF   ACTION.  §  56 

§  55.  In  Illinois,  under  a  statute  which  authorizes  an 
attachment  to  issue  where  "  any  creditor  shall  file  an 
affidavit,  setting  forth  that  any  person  is  indebted  to 
him,  stating  the  nature  and  amount  of  such  indebted- 
ness, as  near  as  may  be,"  it  was  held  that  an  action  of 
account  might  be  instituted  by  attachment,  by   one 
partner  in   a  commercial  adventure   against  another. 
The  court  remarked  —  "The  law  was  designed  to  fur- 
nish a  creditor  with  the  means  of  collecting  his  debt,  in 
a  case  where  he  would  be  unable  to  do  so  in  the  ordi- 
nary mode  of  proceeding,  and  we  can  see  no  reason 
why  it  should  not  be  as  applicable  to  actions  of  account 
as  to  any  other  class  of  cases.     The  claim  of  a  joint 
tenant,  tenant  in  common,  or  coparcener  is  just  as  sa- 
cred as  that  of  any  other  creditor ;  and  because  he  can- 
not resort  to  the  more  usual  common  law  actions  to 
enforce  his  rights,  affords  no  reason  why  he  should  be 
deprived  of  the  benefit  of  the  attachment  act,  when  he 
presents  a  case  that  would  authorize   an  attachment, 
were  he  permitted  to  sue  in  debt  or  assumpsit. 

"  As  to  the  sufficiency  of  the  affidavit  there  can  be 
no  question.  After  settiug  forth  the  dealings  between 
the  parties,  and  the  nature  of  the  indebtedness,  with 
great  particularity,  it  alleges  that  the  defendant,  by 
means  of  the  premises,  is  indebted  to  the  plaintiff  in  a 
sum  stated,  and  that  the  defendant  is  not  a  resident  of 
the  State.  Upon  such  an  affidavit  an  attachment  may 
properly  issue."  ^ 

§  56.  In  Louisiana,  however,  it  is  held  that  an  action 


1  Humphreys   v.   Matthews,    11    Illinois,    471.      See,    also,   remarks    of 
Slidell,  J.,  in  Brinegar  v.  Griffin,  2  Louisiana  Annual,  154. 

[81] 


§  58  CAUSE    OF   ACTION.  [CH.  II. 

by  attachment,  by  one  general  partner  against  another, 
for  an  amount  alleged  to  be  due,  growing  out  of  the 
transactions  of  the  partnership,  cannot  be  maintained.^ 
And  so  in  South  Carolina.^ 

§  57.  The  debt  for  which  an  attachment  may  issue, 
must  possess  an  actual  character,  and  not  be  merely 
possible,  and  depending  on  a  contingency  which  may 
never  happen.  Therefore,  where  the  plaintiff  alleged 
as  a  ground  for  obtaining  an  attachment,  that  he  was 
security  to  a  draft  drawn  for  the  defendant  in  the  sum 
of  §900,  and  that  the  defendant  was  about  to  remove 
himself  out  of  the  State,  so  that  the  ordinary  process  of 
law  could  not  be  served  on  him,  and  that  thereby  the 
plaintiff  would  probably  have  the  draft  to  pay,  or  suit 
would  have  to  be  brought  for  the  same  in  another 
State;  it  was  held  that  the  attachment  could  not  be 
sustained.^ 

§  58.  And  though,  as  in  some  States,  an  attachment 
wall  lie  on  a  debt  not  due,  yet  there  must  be  an  actual 
subsisting  debt  which  w^ill  become  due  by  the  efllux  of 
time.  Therefore,  where  suit  was  brought  on  the  4th 
of  February,  by  the  drawer  against  the   acceptor  of 


1  Levy  V.  Levy,  11  Louisiana,  581 ;  Brinegar  v.  Griffin,  2  Louisiana  An- 
nual, 151. 

2  Rice  V.  Beers,  1  Rice's  Digest  of  South  Carolina  Reports,  75.  This  case 
cannot  probably  be  found  in  any  of  the  volumes  of  the  South  Carolina  Re- 
ports, but  it  is  no  doubt  authentic.  Mr.  Rice's  Digest  contains  many  cases 
decided  In  South  Carolina,  and  nowhere  else  reported.  Li  that  State  they 
are  often  referred  to  in  the  opinions  of  the  Court  of  Appeals,  as  authorita- 
tive. Whoever  would  understand  the  reason  of  the  absence  of  those  cases 
from  the  Report?,  is  referred  to  the  Preface  to  Kott  &  M'Cord's  Reports. 

*  Benson  v.  Campbell,  G  Porter,  155. 

[82] 


CH.  II.]  CAUSE    OF   ACTION.  §  59 

bills  of  exchange,  -svliicli  had  been  protested  before,  but 
were  not  taken  up  by  the  drawers  until  some  days  after 
that  day,  though  on  that  day  an  agreement  was  made 
by  the  drawers  to  take  them  up ;  it  was  held  that  the 
drawers  could  maintain  no  action  until  the  bills  were 
actually  taken  up,  and  that  the  completion  of  the 
agreement  could  not  relate  back  to  the  time  it  was 
made,  and  reinvest  the  drawers  with  the  title  to  the 
bills  on  the  4th  of  February.^  And  so,  where  a  cred- 
itor, for  the  accommodation  of  his  debtor,  accepted  a 
bill  drawn  by  the  debtor,  payable  a  certain  number  of 
days  after  date,  for  the  amount  of  the  debt,  with  inter- 
est to  maturity,  and  the  bill  was  discounted  by  a  bank, 
and  the  proceeds  applied  to  the  extinguishment  of  the 
original  debt;  it  was  decided,  that  the  acceptor  was 
not  a  creditor  of  the  drawer  until  the  maturity  of  the 
bill,  and  his  payment  of  it,  and  that  his  payment  of  it 
at  maturity  could  not  retroact  so  as  to  give  validity  to 
an  attachment  sued  out  by  him  before  the  payment.^ 

§  59.  In  a  case  which  went  up  to  the  Supreme  Court 
of  the  United  States  from  Louisiana,  the  following  fticts 
were  presented.  B.,  of  Charleston,  South  Carolina, 
being  indebted  to  Z.  &  Co.,  of  New  Orleans,  for  the 
proceeds  of  a  cargo  of  sugar  consigned  to  him,  Z.  &  Co. 
drew  on  him  certain  bills  of  exchange,  which  were  ac- 
cepted, for  the  full  amount  of  those  proceeds,  and  were 
all  negotiated  to  third  persons,  and  were  outstanding, 
and  three  of  them  were  not  yet  due,  when  B.  made  an 
assio-nment  for  the  benefit  of  his  creditors.     Z.  &  Co. 


1  Blanchard  v.  Grousset,  1  Louisiana  Annual,  96. 
-  Read  v.  Ware,  2  Louisiana  Annual,  498. 

[83] 


§  59  CAUSE    OF   ACTION.  [CH.  II. 

upon  hearing  of  it,  brought  suit  against  B.  for  the  full 
amount  of  the  proceeds  of  the  cargo  of  sugar,  and  at- 
tached his  property.  The  question  was,  whether,  under 
the  law  of  Louisiana  allowino;  an  attachment  to  be  sued 
out  upon  a  debt  not  yet  due,  this  attachment  could  be 
maintained.  The  court  said — "It  is  plain  to  us  that 
there  was  no  debt  due  Z.  &  Co.  at  the  time  when  the 
attachment  was  made.  The  supposed  debt  was  for  the 
proceeds  of  a  cargo  of  sugar  and  molasses,  sold  by  B., 
on  account  of  Z.  &  Co.  Assuming  those  proceeds  to  be 
due  and  payable,  Z.  &  Co.  had  drawn  certain  bills  of 
exchange  upon  B.  Avhicli  had  been  accepted  by  the  lat- 
ter, for  the  full  amount  of  those  proceeds ;  and  all  of 
these  bills  had  been  negotiated  to  third  persons,  and 
were  then  outstanding,  and  three  of  them  were  not  yet 
due.  It  is  clear,  upon  principles  of  law,  that  this  was  a 
suspension  of  all  right  of  action  in  Z.  &  Co.,  until  after 
those  bills  had  become  due  and  dishonored,  and  were 
taken  up  by  Z.  &  Co.  It  amounted  to  a  new  credit  to 
B.  for  the  amount  of  those  acceptances,  during  the  run- 
ning of  the  bills,  and  gave  B.  a  complete  lien  upon 
those  proceeds,  for  his  indemnity  against  those  accept- 
ances, until  they  were  no-  longer  outstanding  after  they 
had  been  dishonored. 

"  It  is  true  the  statute  law  of  Louisiana  allows,  in  cer- 
tain'cases,  an  attachment  to  be  maintained  upon  debts 
not  yet  due.  But  it  is  only  under  very  special  circum- 
stances; and  the  present  case  does  not  Ml  within  any  pre- 
4icament  prescribed  by  tliat  law.  The  statute  does  not 
apply  to  debts  resting  in  mere  contingenc}^,  whether  they 
will  ever  become  due  to  the  attaching  creditor  or  not."^ 

'  Black  V.  Zacharic,  3  Howard,  Sup.  Ct.  United  States,  483. 

[84] 


CH.  II.]  CAUSE    OF   ACTION.  §  62 

And  it  must  be  certain,  too,  that  the  demand  is 
founded  on  contract.  If  from  the  facts  sworn  to  a 
contract  does  not  appear,  or  cannot  be  necessarily  im- 
plied, an  attachment  will  not  lie.^ 

§  60.  But  though  there  seems  to  be  a  general  con- 
currence in  the  allowance  of  attachments  in  actions 
founded  on  contract,  there  is  diversity  of  opinion  grow- 
ing out  of  the  question  as  to  the  measure  of  recovery. 
Can  an  attachment  be  sustained  for  unliquidated  dam- 
aores  arisino;  ex  contractu  ? 

§  61.  In  the  cases  above  cited,  from  New  York, 
Louisiana,  Pennsylvania,  Maryland,  Alabama,  Missis- 
sippi, and  Illinois,  it  will  be  observed,  that  the  contracts 
for  breach  of  which  suits  were  brought,  afforded  a  rule 
in  themselves  for  ascertaining  the  damages,  and  upon 
this  ground  the  actions  were  sustained.  But  where 
such  is  not  the  case,  it  has  been  considered  that  attach- 
ment cannot  be  resorted  to. 

§  62.  In  the  circuit  court  of  the  United  States  for 
the  third  circuit,  a  case  arose,  in  which  damages  were 
claimed  by  the  owner  of  a  ship,  of  one  who  had  char- 
tered the  ship,  for  renouncing  the  charter-party,  and 
refusing  to  permit  her  to  proceed  on  the  contemplated 
voyage.  In  delivering  the  opinion  of  the  court,  dis- 
solving the  attachment,  Justice  Washington  used  the 
following  language :  — 

"Whether  the  plaintiffs  can  maintain  any  action 
upon  this  charter-party,  by  reason  of  the  refusal  of  the 


^  Jacoby  v.  Gogell,  5  Serg.  &  Rawle,  450. 

8  [85] 


§  63  CAUSE    OF    ACTION.  [CII.  II. 

defendant  to  take  on  board  a  cargo,  and  to  prosecute  a 
Yoyage,  is  a  question  which  has  not  been  considered  by 
the  court;  nor  is  it  necessary  that  it  should  be  decided. 
For,  if  an  action  can  be  maintained  upon  it,  it  still 
remains  to  be  inquired,  by  what  standard  are  the  dam- 
ages, which  the  plaintiffs  have  sustained  on  account  of 
.  the  refusal  of  the  defendant  to  perform  the  voyage, 
to  be  ascertained?  That  furnished  by  the  contract, 
was  a  certain  sum  per  month,  during  the  voyage, 
to  be  ascertained  at  its  termination ;  but  that  event 
never  took  place ;  and  consequently  no  rule  can  be 
deduced  from  this  source  to  fit  the  present  case. 
"  This,  then,  is  a  case  in  which  unliquidated  damages 
are  demanded ;  in  which  the  contract  alleged  as  the 
cause  of  action,  affords  no  rule  for  ascertaining  them ; 
in  which  the  amount  is  not,  and  cannot,  wdth  propriety, 
be  averred  in  the  affidavit ;  and  which  is,  and  must  be, 
altogether  uncertain,  until  the  jury  have  ascertained  it; 
for  which  operation  no  definite  rule  can  be  presented 
to  them."  1 

§  63.  In  New  Jersey,  adjudications  on  this  subject 
have  taken  place.  The  statute  there  required  the 
plaintiff,  in  order  to  obtain  an  attachment,  to  make  oath 
that  the  defendant  "  owes  the  plaintiff  a  certain  sum  of 
money',  specifying  as  nearly  as  he  can,  the  amount  of 
the  debt  or  balance."  An  attachment  was  there  ob- 
tained in  an  action  of  covenant,  upon  an  affidavit  that 
the^defendant  owed  the  plaintiff  $300,  "  damages  he 
had   sustained   by   reason    of  the   breach   of  covenant 


'  Clark's  Ex'rs  r.  AVilson,  3  Wash.  C.  C.  5G0.     Sed  contra,  sec  Kedwood 
17.  Consequa,  2  Brawne,  62. 

•        [80] 


CH.  II.]  CAUSE    OF   ACTION.  §  64 

which  the  defendant  made  to  the  plaintiff  and  hath 
broken."  The  nature  of  the  covenant  was  not  dis- 
closed by  the  affidavit,  or  otherwise,  and  the  court  held 
that  the  attachment  was  not  sustainable,  because  the 
cause  of  action  sounded  in  damages  merely,  and  those 
damages  were  unliquidated,  and  could  not  possibly  be 
reduced  to  any  degree  of  certainty  without  the  inter- 
vention of  a  jviry.  But  the  court  considered  that 
where  a  covenant  is  for  the  payment  of  a  sum  certain, 
it  might  be  proceeded  on  by  attachment.^  In  the 
same  State  it  was  decided  that  attachment  would  not 
lie  for  the  recovery  of  a  penalty  intended  to  secure 
unliquidated  damages.^ 

§  64.  In  Alabama,  under  that  clause  of  the  statute 
above  referred  to,  which  authorized  an  attachment 
where  the  defendant  was  indeUed  to  the  plaintiff,  the 
following  case  arose.  The  plaintiff"  claimed  that  the 
defendant  contracted  with  him  to  take  certain  iron 
upon  a  vessel  of  the  defendant's  lying  at  New  Orleans 
and  bound  for  Providence.  The  iron  was  in  three  flat 
boats  which  were  taken  along-side  the  vessel,  and  the 
defendant  commenced  taking  the  iron  on  board ;  but 
he  left  a  quantity  of  it  in  the  boats  and  refused  to  take 
it,  alledno;  that  it  would  not  pack  well  with  the  re- 
mainder  of  the  freight.  One  of  the  boats,  containing 
about  forty  tons  of  the  iron,  of  the  value  of  $1,000, 
sunk,  and  was  totally  lost.  There  was  ample  time  for 
the  defendant  to  have  taken  the  iron  on  board  his 
vessel,  and  its  loss  was  caused  by  his  refusal  to  take  it 


1  JefFery  v.  Wooley,  5  Halstetl,  123. 

-  Clieddick  v.  Marsh,  1  Zabriskie,  463  ;  Hoy  r.  Brown,  1  Harrison,  157 

[87] 


§  65  *  CAUSE    OF   ACTION.  [CH.  II. 

according  to  his  contract.  The  court,  regarding  the 
cause  of  action  to  be  one  for  general  and  unliquidated 
damasces,  held  it  to  be  not  within  the  terms  of  the  law, 
and  dissolved  the  attachment.^ 

§  65.  If,  however;  the  cause  of  action  for  which  the 
attachment  is  obtained,  be  one  upon  which  that  process 
might  not  be  legally  issued,  the  defect  cannot  be 
reached  by  demurrer  to  the  declaration.^  A  motion  to 
dissolve,  or  a  plea  in  abatement,  would  be  the  proper 
course.  And  no  advantage  can  be  taken  of  the  defect 
after  verdict,  where  the  defendant  appears  and  pleads 
to  the  merits.^ 


^  Hazard  v.  Jordan,  12  Alabama,  180. 

2  Cain  V.  Mather,  3  Porter,  224. 

3  Redus  V.  Wofford,  4  Smedes  and  Marshall,  W9 ;  Marshall  r.  White, 
Porter,  551. 

[88] 


CHAPTER   III. 

OF  ABSENT,  ABSCONDING,  CONCEALED,  AND  NON-RESIDENT  DEBT- 
ORS, AND  DEBTORS  REMOVED  OR  FRAUDULENTLY 'DISPOSING  OF 
THEIR   PROPERTY. 

§  66.  In  almost  every  State  in  the  Union,  attach- 
ments are  authorized  against  absent,  absconding,  con- 
cealed, and  non-resident  debtors ;  and  though ,  the 
number  of  adjudications  in  relation  to  these  several 
classes  of  debtors  is  not  great,  and  indeed  much  less 
than  might  be  supposed,  it  is  sufficiently  large  to  re- 
quire separate  consideration. 

§  67.  And  first,  as  to  ahscnt  dchtors.  It  has  never  been 
considered,  so  fixr  as  I  have  discovered,  that  mere  tem- 
porary absence  from  one's  place  of  residence,  accom- 
panied with  an  intention  to  return,  is  a  sufficient  cause 
for  attachment.  Were  it  so  regarded,  no  limit  could 
be  set  to  the  oppressive  use  of  this  process.  Hence  we 
find  that  usually  the  absence  must  be  so  protracted  as 
to  amount  to  a  prevention  of  legal  remedy  for  the  col- 
lection of  debts.  It  is  often,  therefore,  expressly  pro- 
vided, that  to  authorize  an  attachment  on  account  of 
absence,  it  must  be  of  such  character  that  the  ordinary 
process  of  law  cannot  be  served  on  the  debtor.  But 
even  where  no  such  qualification  exists,  no  case  is  to 
8=^  [89] 


§  70        DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

be  found  justifying  an  attachment  upon  a  casual  and 
temporary  absence  of  a  debtor. 

§  68.  In  Louisiana,  an  attachment  was  taken  out 
against  a  merchant,  who,  during  the  summer,  left  his 
store  in  New  Orleans  in  charge  of  agents,  and  went 
■to  New  York,  on  business,  avowing  his  intention  to 
return  in  the  fall.  In  support  of  the  attachment  it  was 
contended  that  any  kind  of  absence  of  the  debtor  from 
the  jurisdictional  limits  of  the  State  authorized  the 
attachment ;  but  this  view  was  expressly  rejected  and 
overruled  by  the  court.^ 

§  69.  In  New  York,  the  court  seemed  to  lay  stress 
upon  the  fact  that  the  debtor  was  out  of  the  reach  of 
the  process  of  law ;  and  held  that  the  remedy  by  at- 
tachment was  available  against  an  absent  debtor, 
whether  absent  permanently  or  temporarily ;  and  neg- 
atived the  idea  that  one  might  go  openly  to  another 
state  or  country,  and  remain  there  doing  business,  but 
intending  to  return  when  his  convenience  will  permit, 
and  by  such  expressed  intention  prevent  the  resort  to 
this  remedy." 

§  70.  It  is  by  no  means  easy  to  determine  what  ab- 
sence of  a  resident  will  justify  an  attachment.  The 
supreme  court  of  Missouri  felt  the  dilliculty,  in  con- 
struing a  statute  which  authorized  an  attachment  where 
the  deJL>tor  "  has  absented  himself  from  his  usual  place 


'  Wati^on  V.  Picirpont,  7  ]\Iartin,  413. 
-  Matter  of  Thompson,  1  Wendell,  43. 

[90] 


en.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  72 

of  abode  in  this  State,  so  that  the  ordinary  process  of 
law  cannot  be  served  upon  him."  "  While,"  said  the 
court,  "  it  is  not  admitted  that  every  casual  and  tempo- 
rary absence  of  the  debtor  from  his  place  of  abode, 
•v\'hich,  during  the  brief  period  of  his  absence,  may 
prevent  the  service  of  a  summons,  is  a  legal  ground  for 
issuing  an  attachment  against  his  property,  it  is  difficult 
to  define  the  character  and  prescribe  the  duration  of 
the  absence  which  shall  justify  the  use  of  this  process. 
It  may  be  asserted,  however,  that  where  the  absence  is 
such,  that  if  a  summons  issued  upon  the  day  the  attach- 
ment is  sued  out,  will  be  served  upon  the  defendant  in 
sufficient  time  before  the  return  day  to  give  the  plain- 
tiff all  the  rights  which  he  can  have  at  the  return 
term,  the  defendant  has  not  so  absented  himself  as 
that  the  ordinary  process  of  law  cannot  be  served  upon 
him."  1 

§  71.  The  term  "absent  defendants"  received  a  judi- 
cial construction  in  Kentucky,  where  it  was  held  to 
include  only  such  as  were,  at  the  commencement  of  the 
suit,  actually  absent  from  the  State.^ 

§  72.  As  to  absconding  debtors.  An  absconding  debtor 
is  one  who,  with  intent  to  defeat  or  delay  the  demands 
of  his  creditors,  conceals  himself,  or  withdraws  him^self 
from  his  usual  place  of  residence  beyond  the  reach  of 
their  process.  "  Thus,"  said  the  supreme  court  of  Con- 
necticut, "  if  a  person  depart  from  his  usual  residence, 
or  remain  absent  therefrom,  or  conceal  himself  in  his 

^  Kingsland   v.   Worsliam,    15    Missouri,    G5  7.      See   Fitch   v.  Waite,   5 
Conn.  117. 
"^  Clark  V.  Arnold,  9  Dana,  305. 

[91] 


f 


§  73        DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

house,  SO  that  he  cannot  be  served  with  process,  with 
intent  unlawfully  to  delay  or  defraud  his  creditors,  he  is 
an  absconding  debtor.  But  if  he  depart  from  the  State, 
or  from  his  usual  abode,  with  the  intention  of  again 
returning,  and  without  any  fraudulent  design,  he  has 
not  absconded,  within  the  intendment  of  the  law." 
"Therefore,  where  a  debtor  departed  from  L.,  his  usual 
place  of  residence,  and  went  to  M.,  in  the  same  State, 
where  he  worked  openly  at  his  trade,  for  above  three 
months,  without  taking  any  measures  to  conceal  him- 
self; it  was  held  that,  while  in  this  situation,  he  was 
not,  with  respect  to  a  creditor  in  L.,  an  absconding 
debtor,  within  the  statute,  although  his  friends  and 
neighbors  in  L.,  did  not  know  where  he  was,  and  his 
absence  was  a  subject  of  conversation  among  them.^ 

§  73.  Since  concealment,  or  withdrawal  from  one's 
place  of  abode,  with  the  intent  before  mentioned,  seems 
to  be  a  necessary  element  of  absconding,  it  cannot  be 
said  of  one  who  resides  abroad,  and  comes  thence  into 
a  particular  jurisdiction,  and  returns  from  that  jurisdic- 
tion to  his  domicil,  that  in  leaving  the  place  which  he 
had  so  visited,  he  was  an  absconding  debtor.^  And  un- 
der a  statute  authorizing  an  attachment  against  any 
person  absconding  or  concealing  himself,  so  that  the 
ordinary  process  of  law  could  not  be  served  upon  him, 
it  was  held  that  only  residents  of  the  State  who  ab- 
sconded were  within  the  scope  of  the  law,  and  that  an 
attaclxtfient  would  not  lie,  for  that  cause,  against  one 
who  had  not  yet  acquired  a  residence  there. 


3 


>  Fitch  I'.  Waitc,  5  Conn.  117. 

"  INIattcr  of  Fitzgerald,  2  Caincs,  31^ 

3  Shugart  V.  Orr,  5  Yergcr,  192. 

[92] 


CII.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  75 

In  Alabama,  however,  it  has  been  held  that,  upon 
affidavit  that  the  defendant  "  absconds  or  secretes  him- 
self so  that  the  ordinary  process  of  law  cannot  be  served 
upon  him,"  an  attachment  will  lie,  though  the  defend- 
ant is  a  resident  of  another  State,  and  was  only  casually 
in  the  State  of  Alabama.^ 

^  74.  An  attachment  was  taken  out  as-ainst  one,  on 
affidavit  that  he  had  departed  the  State,  with  the  intent 
of  avoiding  arrest,  and  of  defrauding  his  creditors. 
Upon  its  being  made  to  appear  to  the  court  that  he 
left  his  home  to  go  to  another  place  in  the  same  State 
to  sell  some  property ;  that  previous  to  his  departure 
the  object  of  his  journey  was  communicated  to  his 
neighbors,  and  was  generally  understood ;  and  that  he 
publicly  took  his  departure  and  returned  within  ten 
days,  the  attachment  w\as  superseded.^  And  so  where 
it  satisflictorily  appeared  that  the  defendants  had  not 
absconded,  although  from  the  facts  and  circumstances 
the  creditor  was  authorized  to  say  that  he  helieved  they 
had  done  so.^ 

§  75.  The  act  of  absconding  necessarily  involves  in- 
tention to  abscond.  Therefore  a  public  and  open  re- 
moval, or  a  departure  unaccompanied  with  that  inten- 
tion, will  not  constitute  an  absconding.  Much  less  will 
such  a  departure,  accompanied  with  the  expressed  pur- 
pose to  return,  and  there  are  no  suspicious  circumstances 
to  the  contrary.* 

1  Middlebrook  r.  Ames,  5  Stewart  &  Porter,  158. 
=  Matter  of  Chipman,  1  Wendell,  66. 
^  Matter  of  Warner,  3  Wendell,  424. 
*  Boardman  r.  Biokford,  2  Aikens,  345. 

[93] 


§  77        DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

§  76.  In  showing  the  true  character  of  a  departure, 
where  it  is  alleged  that  it  was  but  for  a  season,  with  the 
intention  of  returning,  evidence  of  common  reputation 
in  the  neighborhood  to  that  effect  is  inadmissible.^ 
But,  in  all  such  cases,  what  the  party  said,  contempo- 
raneously with  his  departure,  or  immediately  previous 
thereto,  as  to  the  point  of  his  destination,  the  object  he 
had  in  view,  and  when  he  expected  to  return,  are  a 
part  of  the  7'cs  gcstw,  and  may  be  received  in  evidence 
as  explanatory  of  his  intentions,  and,  in  the  absence  of 
opposing  proof,  might  repel  the  imputation  that  he  was 
absconding,  or  otherwise  endeavoring  to  evade  the  ser- 
vice of  ordinary  process.^ 

§  77.  As  to  debtors  concealing  themselves.  The  conceal- 
ment which  will  justify  an  attachment  is  but  a  phase  of 
absconding,  though  sometimes  in  attachment  laws  the 
two  acts  are  set  forth  separately,  and  independent  of 
each  other,  so  as  to  indicate  that  they  are  regarded  as 
distinct.  More  usually,  however,  they  are  connected 
together  thus  —  "absconds  or  conceals,"  or  "  absconds 
or  secretes  ; "  —  in  which  case  they  have  been  regarded, 
and  no  doubt  rightly,  as  undistinguishable.  It  has, 
therefore,  been  held  that  an  affidavit  stating  that  the 
defendant  "  absconds  or  conceals  himself,"  does  not  ex- 
hibit two  separate  grounds  for  attachment,  which, 
coupled  by  the  disjunctive  "or"  would  be  vicious,  but 
one  only,  for  the  terras  are  of  equivalent  meaning.^ 


^  Pitts  V.  Burroughs,  6  Alabama,  733. 

-  Pitts  V.  Burroughs,  G  Alabama,  733  ;  OfTiitt  ?■.  Edwards,  9  Koljinson 
(La.)  90. 

^  Goss  V.  Gowing,  5  lllcliardson,  477  ;  Conrad  v.  M'Gec,  9  Yorger,  428. 

[94] 


CH.  III.]  DEBTORS,    ABSENT,   ABSCONDING,    ETC.  §  80 

§  78.  Where  an  attachment  was  issued,  on  affidavit 
that  "  the  defendant  was  secreting  himself,  so  that  the 
ordinary  process  of  law  could  not  be  served,"  and  it 
was  shown  on  behalf  of  the  defendant  that  he  w\as  tem- 
porarily absent  from  his  place  of  abode,  on  a  visit  to  his 
son-in-law  in  another  county  of  the  same  State  ;  that 
the  plaintiff  knew  the  defendant's  intention  to  make  said 
visit  long  before  he  started,  and  that  his  intention  was 
publicly  and  notoriously  known  before  he  left ;  it  was 
held  to  be  unnecessary  for  the  defendant  to  show  that 
he  communicated  to  the  plaintiff  his  intention  to  make 
the  visit ;  and  that  it  was  sufficient  if  it  were  known  in 
the  neighborhood,  and  could  be  ascertained  on  inquiry.^ 

§  79.  Concealment,  to  authorize  an  attachment,  must 
be  with  the  intent  to  defeat  or  delay  the  claims  of  cred- 
itors, by  avoiding  the  service  of  process.  Therefore, 
one  who  conceals  himself  for  the  purpose  of  avoiding  a 
criminal  prosecution  is  not  within  the  purview  of  the 
law.2 

§  80.  As  to  non-resident  dehtors.  In  determining 
w^hether  a  debtor  is  a  resident  of  a  particular  State  or 
not,  the  Cjuestion  as  to  his  domicil  is  not  necessarily 
always  involved  ;  for  he  may  have  a  residence  which 
is  not  in  law  his  domiciL  Domicil  includes  residence, 
w^ith  an  intention  to  remain,  in  a  particular  place  ; 
while  no  lengjth  of  residence,  without  the  intention  of 
remaining,  constitutes  domicil.^ 


^  Walcott  V.  Hendrick,  6  Texas,  406. 

"  Evans  v.  Saul,  8  Martin,  Xew  Ser.,  247. 

'  Matter  of  Thompson,  1  Wendell,  43. 

[95] 


§  82        DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

§  81.  A  resident  and  inhabitant  mean  the  same  thing. 
A  person  resident  is  defined  to  be  one  "  dwelling  or  hav- 
ing his  abode  in  any  place:"  an  inhabitant,  "one  that 
resides  in  a  place."  ^  These  terms  will  therefore  be 
nsed  synonymously,  as  they  may  occur  in  the  cases 
cited. 

§  82.  Where  the  subject  of  a  foreign  government, 
who  had  been  trading  in  the  West  Indies,  came  to  this 
country  on  a  commercial  adventure,  without  any  idea 
of  settling  here,  or  of  not  returning  hence  as  soon  as 
his  bushiess  was  settled,  he  was  held  to  be  a  non-resident, 
and  liable  as  such  to  an  attachment.^  So  a  person  com- 
ing occasionally  to  a  place,  in  the  course  of  trade,  can- 
not be  called  an  inhabitant  of  that  place.^  Nor  can  one 
who  removed  from  another  State  clandestinely,  and 
conceals  himself  in  that  to  which  he  fled,  be  regarded 
as  a  resident  of  the  latter.*  '  So  where  one  who  had 
been  a  resident  of  New  York,  broke  up  his  residence 
and  sailed  for  England  sine  animo  revcrtendi,  but  after 
staying  there  three  weeks  returned  to  New  York,  on 
his  way  to  Canada,  and  took  lodgings  in  Brooklyn  to 
wait  the  arrival  of  his  goods,  and  remained  there  a  few 
weeks,  and  then  passed  over  to  New  York,  and  took 
lodgings  there  for  a  few  days ;  it  was  held,  that  these 
circumstances  afforded  no  foundation  for  a  pretence 
that  he  was  a  resident  or  inhabitant  of  New  York.^ 

1  Roosevelt  v.  Kellogg,  20  Johnson,  208 ;  Matter  of  Wrigloy,  4  Wendell, 
C02  ;  s.  C^8  Wendell,  134  ;  2  Kent's  Com.,  431,  note. 
^  IMattcr  of  Fitzgerald,  2  Caines,  318. 
'  Barnet's  Case,  1  Dallas,  152  ;  Boardman  v.  Bickford,  2  Aikens,  315. 

*  Shugart  v.  Orr,  5  Yerger,  192. 

*  Matter  of  Wrigley,  8  Wendell,  134  ;  Remarks  of  Chancellor  AVal worth, 
S.  C.  4  Wendell,  G02. 

[90] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,    ETC.  §  84 

§  83.  But  one  who  goes  to  a  place  with  the  intention 
to  reside  there,  becomes  a  resident  of  that  place,  and 
acquires  a  domicil  there,  whether  the  residence  have 
been  long  or  short.^ 

But  this  animus  manendi  must  certainly  exist,  other- 
wise no  domicil  is  acquired.  Therefore,  where  one  had 
abandoned  his  residence  in  Indiana,  and  went  thence 
with  his  family  to  New  York,  where  he  lived  with  a 
friend,  while  he  was  looking  out  for  an  opportunity  of 
again  getting  into  business,  and  whether  he  should 
finally  settle  in  that  State  or  elsewhere  was  undeter- 
mined, it  was  considered  that  he  might  be  proceeded 
against  by  attachment,  as  a  non-resident  of  New  York.^ 

§  84.  On  the  question  of  residence,  the  mode  of  liv- 
ing is  not  material,  whether  on  rent,  at  lodgings,  or  in 
"the  house  of  a  friend.  The  apparent  or  avowed  inten- 
tion of  constant  residence,  not  the  manner  of  it,  consti- 
tutes the  domicil.  In  inquiries  of  this  sort  minute  cir- 
cumstances are  taken  into  consideration :  the  immedi- 
ate employment  of  the  party,  his  general  ^Dursuits  and 
habits  of  life,  his  friends  and  connections,  are  circum- 
stances which,  thrown  into  the  scale,  may  give  it  a  de- 
cisive preponderance.'^  Therefore,  where  a  man  came 
from  another  place  to  reside  in  Pennsylvania,  intro- 
duced his  family  there,  took  a  house,  engaged  in  trade, 
and  contracted  debts,  he  was  held  to  be  an  inhabitant, 
so  as  to  be  the  object  of  domestic,  and  not  of  foreign, 
attachment.*     So  where   an  unmarried  man  came   to 

^  2  Kent's  Com.  431,  note. 

^  Buirows  V.  Miller,  4  Howard's  Practice  Rep.,  349. 

^  Guier  v.  O'Daniel,  1  Binney,  349,  note. 

*  Barnet's  Case,  1  Dallas,  152. 

9  [97] 


§  85       DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

Philadelphia,  took  lodgings,  and  rented  a  store  in  the 
city,  where  he  carried  on  trade,  and  frequently  declared 
his  intention  of  taking  up  a  permanent  residence  in  the 
city,  he  was  held  to  be  an  inhabitant.^  And  while  a 
man  thus  remains,  he  is  to  be  regarded  as  a  resident  of 
the  place,  though  he  avow  an  intention  to  withdraw 
from  it.^ 

§  85.  It  follows  from  these  views  of  what  constitutes 
a  resident  or  inhabitant,  that  change  of  abode,  sine  animo 
revertendi,  makes  one  immediately  a  non-resident  of  the 
place  from  which  he  departs.  Therefore,  where  a  per- 
son resided  and  carried  on  business  in  New  York  for 
several  years,  and  becoming  embarrassed  and  unable  to 
pay  his  debts,  determined  to  leave  this  country  for 
England,  and  did  actually  leave,  taking  with  him  his 
effects,  without  any  intention  of  returning,  he  was  held 
to  be  no  longer  an  inhabitant  of  New  York.^  So  where 
one  had  acquired  a  residence  in  Philadelphia,  and  sailed 
thence  to  the  West  Indies  as  supercargo  of  a  vessel, 
taking  with  him  four  fifths  of  his  property,  having  pre- 
viously executed  an  assignment  of  the  rest  of  it  for  the 
benefit  of  creditors ;  and  engaged  in  trade  in  the  West 
Indies,  where  he  was  seen  by  persons  who  understood 
from  him  that  he  did  not  intend  to  return  soon,  and  his 
letters  had  been  for  nine  months  silent  as  to  his  return  j 
he  was  considered  to  be  no  longer  an  inhabitant  of  the 
State,  and  his  property  was  subjected  to  a  foreign  at- 
tachment, though  when  he  went  away  he  expressed  his 


^  Kennedy  v.  Baillie,  3  Yeates,  55. 

"  Lyle  V.  Foreman,  1  Dallas,  480. 

«  Ma^er  of  Wrigley,  4  Wendell,  602  ;  s.  c.  8  Wendell,  134. 

[98] 


CH.  III.]  DEBTORS,    ABSENT,   ABSCOXDIXG,   ETC.  §  86 

purpose  to  return  in  twelve  or  eighteen  months.^  So 
where  one  resided  a  few  months  in  Philadelphia,  and 
then  proceeded  to  Virginia,  whence  he  sailed  for  Eng- 
land, in  consequence  of  receiving  intelligence  of  the 
misconduct  of  a  partner  there,  but  declaring  his  inten- 
tion to  return  in  the  ensuing  spring,  it  was  considered 
that  he  had  ceased  to  be  an  inhabitant  of  Pennsylvania, 
and  was  subject  to  foreign  attachment.^  So  where  a 
resident  of  Kentucky,  stated  that  he  had  purchased 
land  in  Missouri,  and  intended  to  go  there  in  the  foil  to 
live,  and  persuaded  an  acquaintance  to  go  with  him 
and  settle  in  his  neighborhood,  and  did  go  away  in  the 
fall,  and  was  absent  when  the  suit  was  brought ;  it  was 
held  sufficient  to  justify  proceeding  against  him  by 
attachment  as  a  non-resident,  though  he  returned  a 
month  after  the  suit  was  brought.^ 

§  86.  In  a  recent  case  the  court  of  appeals  of  New 
York  recognized  the  compatibility  of  domicil  in  that 
State  with  actual  non-residence,  so  as  to  authorize  the 
party  to  be  proceeded  against  by  attachment  as  a 
non-resident,  even  when  the  intention  to  return  ex- 
isted, and  there  was  no  abandonment  of  domicil.  This 
was  only  an  extended  application  of  the  doctrine  held 
in  that  State  in  the  case  above  cited,^  as  applied  to  ah- 
scnt  debtors.  In  the  case  now  referred  to,  'the  defend- 
ant was  proceeded  against  as  a  non-resident.  On  his  be- 
half it  was  offered  to  be  proved  that  he  was  not  a  non- 
resident of  New  York  when  the  attachment  was  taken 

^  Nailor  v.  French,  4  Yeates,  241. 

-  Taylor  i'.  Knox,  1  Dallas,  158. 

^  Farrow  r.  Barker,  3  Ben  Monroe,  217. 

*  Matter  of  Thompson,  1  Wendell,  45. 

[99] 


§  88       DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

out,  but  was  a  resident  thereof;  and  that  he  had  been 
absent  about  three  years,  in  attending  to  a  lawsuit  at 
New  Orleans,  and  returned  thence  to  New  York  after 
the  attachment  was  obtained.  This  evidence  was  ex- 
cluded by  the  judge,  because  the  offer  itself  showed  the 
defendant  to  be  a  non-resident  at  the  time  the  attach- 
ment issued  ;  and  the  court  of  appeals  held  the  ruling 
of  the  judge  to  be  correct,  and  that  the  defendant  was  a 
non-resident  when  the  attachment  was  issued,  although 
domiciled  in  New  York.^ 

§  87.  As  to  deUors  i^emoving  their  propeiii/.  In  many  of 
the  States  statutory  provisions  exist  authorizing  attach- 
ments to  issue,  where  a  debtor  is  about  to  remove  his 
property  out  of  the  State.  We  will  give  brief  atten- 
tion to  the  cases  which  have  arisen  under  jorovisions  of 
this  description. 

§  88.  In  Louisiana,  under  a  statute  authorizing  an 
attachment  where  "  the  debtor  is  about  to  remove  his 
property  out  of  the  State  before  the  debt  becomes 
due,"  it  was  decided  that  the  statute  must  be  under- 
stood to  apply  to  property  wdiich  the  creditor  might 
have  supposed  would  not  be  carried  out  of  the  State, 
and  to  which  he  might  have  looked  for  his  security  at 
the  time  of  contracting  or  since ;  but  that  it  would  be 
unreasonable  to  extend  it  to  a  species  of  property 
•which,  from  its  nature  and  destination,  must  necessarily 
be  taken  out  of  the  State,  and  which  the  creditor  could 
not  have  believed  would  remain  continually  within  its 


'  Ilagi^rt  V.  Morgan,  1  Seldcn,  422.     Contra,  Brundred  v.  Del  Iloyo, 
Spencer,  328. 

[100] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  89 

limits.  Therefore,  where  a  debtor  was  the  owner  of  a 
steamboat,  which  he  had  purchased  from  the  plaintiff, 
and  for  part  of  the  purchase-money  had  given  notes  to 
the  plaintiff,  secured  by  a  mortgage  on  the  boat,  which 
notes  were  not  yet  due ;  and  after  the  giving  of  the 
notes,  had  been  running  the  boat  regularly  in  a  partic- 
ular trade,  which  necessarily  took  her  out  of  the  State ; 
it  was  considered  that  the  fact  of  the  defendant  being 
about  to  take  her  away  on  one  of  her  regular  trips, 
without  any  fraud  or  intention  to  defraud  being  al- 
leged, was  not  sufficient  to  justify  an  attachment  on 
the  ground  stated  in  the  statute  and  above  cited.^ 

§  89.  In  Illinois,  where  the  statute  authorized  an 
attachment  when  the  debtor  "  is  about  to  remove  his 
property  from  this  State  to  the  injury  of  such  creditor," 
an  attachment  was  obtained  on  that  ground  against 
two  debtors,  and  levied  on  fifty  tons  of  pig  iron,  which 
was  all  the  personal  property  owned  by  the  defendants 
in  the  county,  at  the  time  the  writ  issued.  The  defend- 
ants filed  a  plea  in  abatement,  traversing  the  allegation 
of  the  affidavit  that  they  were  about  to  remove  their 
property  from  the  State  to  the  plaintiff^'s  injury.  On 
the  trial  of  this  plea,  they  offered  to  prove  that  one  of 
them  owned  a  large  amount  of  personal  property  in 
the  State,  free  from  any  incumbrance,  and  more  than 
sufficient  to  discharge  the  plaintiff's  demand.  The 
court  excluded  this  evidence ;  but  the  supreme  court 
held  this  exclusion  to  be  erroneous.  They  considered 
that  not  only  must  there  be  a  removal  of  the  property 
of  the  defendants,  but  that  it  must  be  to  the  injury  of 


^  Kiissell  V.  Wilson,  18  Louisiana,  3G7. 

9=^  [101] 


§  91        DEBTORS,  ABSENT,  ABSCONDING,  ETC.     [CH.  III. 

the  plaintiff;  and  that  the  proof  offered  was  competent, 
as  tending  to  show  that  the  removal  would  not  operate 
to  the  plaintiff's  injury.^ 

§  90.  In  Tennessee,  under  a  law  providing  for  an 
attachment  to  issue  where  a  debtor  "  is  removing,  or 
about  to  remove  himself  or  his  property  beyond  the 
limits  of  this  State,"  an  attachment  was  obtained 
against  the  owner  of  a  steamboat  on  the  allegation 
that  he  was  "about  to  remove  the  said  steamboat 
beyond  the  limits  of  this  State."  The  court  intimated 
that  the  designation  of  only  a  particular  piece  of 
property  as  being  about  to  be  removed,  if  it  stood 
alone,  would  not  be  sufficient  to  authorize  the  attach- 
ment ;  and  that  the  affidavit  ought  to  use  the  words  of 
the  statute,  or  it  should  exclude  the  idea  that  other 
property  might  still  be  left  by  the  defendant,  within 
the  jurisdiction,  amply  sufficient  to  satisfy  the  demand. 
But  considering  the  allegation  that  the  defendant  was 
about  to  remove  his  boat,  equivalent  to  the  assertion 
that  he  was  about  to  remove  himself,  the  attachment 
was  sustained.^ 

§  91.  As  to  debtors  fraiidulentli/  disposing  of  their  prop- 
erty. In  Missouri,  an  attachment  was  issued  upon 
affidavit  that  the  defendant  had  fraudulently  conveyed, 
assigned,  concealed,  and  disposed  of  his  property  and 
effects,  so  as  to  hinder,  delay,  and  defraud  his  Creditors. 
The  'defendant  pleaded  in  abatement,  traversing  the 
allegations  of  the  affidavit.     On  the  trial  it  ajDpeared 


1  White  V.  Wilson,  10  Illinois  (5  Oilman),  21. 
°  Runyan  v.  Morgan,  7  Ilumplireys,  210. 

[102] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  92 

that  just  before  the  attachment  issued,  the  defendant 
had  sold  his  entire  stock  of  goods  to  a  person  to  whom 
he  was  indebted,  for  the  purpose  of  paying  his  debt ; 
and  it  was  held  that  such  a  sale  was  not  to  be  consid- 
ered fraudulent,  although  the  defendant,  about  the 
time  it  was  effected,  made  false  representations  as  to 
his  condition  and  intentions,  unless  the  vendees  were 
parties  to  the  fraud.^ 

§  92.  Where  an  attachment  in  chancery  was  ob- 
tained, upon  the  complainant  alleging  his  belief  that 
the  defendant  would  sell,  convey,  or  otherwise  dispose 
of  his  property,  with  the  intent  to  hinder,  delay,  and 
defraud  the  complainant,  unless  prevented  by  attach- 
ment, it  was  held  that  the  fraudulent  intent  must  be 
shown  to  have  existed  before  the  suing  out  of  the 
attachment;  and  that  to  prove  it  to  have  originated 
afterwards  was  not  sufficient.^ 

^  Cbauteau  v.  Sherman,  11  Missouri,  385. 
2  AVarner  v.  Everett,  7  Ben  Monroe,  262. 

[103] 


CHAPTEE  IV. 

OF   THE   LIABILITY   OP   CORPORATIONS   AND   REPRESENTATIVE 
PERSONS   TO   BE    SUED   BY  ATTACHMENT. 

§  93.  In  considering  the  cause  of  action  for  which 
an  attachment  may  issue,  we  saw  that  debtors  are  liable 
to  it.  This  might  be  supposed  to  include  all  descrip- 
tions of  persons ;  but  we  find  that  doubts  have  arisen 
as  to  the  liability  of  corporations  to  attachment ;  and 
that  there  are  some  classes  of  natural  persons  who  are 
exempt  from  it.  These  points  will  constitute  the  sub- 
ject of  present  inquiry. 

§  94.  I.  As  to  corporations.  In  New  York,  the  supreme 
court  decided  that  under  the  act  of  that  State  for 
relief  against  absent  and  absconding  debtors,  an  attach- 
ment did  not  lie  against  a  foreign  corporation.  The 
opinion  of  the  court,  delivered  by  Spencer,  J.,  so  fully 
exhibits  the  statutory  provisions  which  were  construed, 
and  the  reasons  upon  which  the  decision  was  based, 
that  the  whole  may  be  best  understood  by  being  here 
set  forth  at  length. 

"Ai)L  attachment  having  been  issued  in  this  case 
against  the-  estate  of  a  corporation  existing  in  Middle- 
town,  in  the  State  of  Connecticut,  a  motion  is  now 
made  for  a  supersedeas,  on  the  ground  that  the  statute 
for  relief  against  absent  and  absconding  debtors  does 
[104] 


CH.  lY.]     CORPORATIONS  AND  REPRESENTATIVE  PERSONS.         §  94 

not  authorize  a  proceeding  against  a  corporation.  The 
attachment,  it  has  been  contended,  may  issue  in  such  a 
case  under  the  23d  section  of  the  act.  That  section 
enacts  that  the  real  and  personal  estate  of  every  debtor 
who  resides  out  of  this  State,  and  is  indebted  within  it, 
shall  be  liable  to  be  attached,  and  sold  for  the  pa^^ment 
of  his  debts,  in  like  manner,  in  all  respects,  as  nearly  as 
may  be,  as  the  estates  of  debtors  residing  within  this 
State ;  and  proof  is  required  by  two  witnesses,  of  the 
residence  of  such  debtor  out  of  the  State.  It  cannot 
be  doubted  that  this  section  must  be  construed  in  con- 
nection with  the  other  sections  of  the  act,  and  particu- 
larly with  reference  to  the  first  and  twenty-first  sections. 
The  first  section  regulates  the  amount  of  the  debt  for 
which  an  attachment  may  issue,  and  the  twenty-first 
section  provides,  that  if  the  debtor  shall,  before  the 
appointment  of  trustees,  apply  to  the  judge  who  issued 
the  attachment,  and  give  such  security  as  he  shall 
approve,  to  the  creditor  at  whose  instance  the  warrant 
issued,  to  appear  and  plead  to  any  action  to  be  brought, 
in  any  court  of  law  or  equity  in  this  State,  within  six 
months  thereafter,  against  him  by  such  creditor,  and  to 
pay  such  sum  as  may  be  recovered  in  such  action,  in 
that  case  such  judge  shall  issue  a  supersedeas  to  the 
warrant.  It  is  very  certain,  that  no  attachment  can  be 
issued  under  this  act,  against  domestic  corporations,  for 
they  cannot  conceal  themselves,  nor  abscond.  The 
court  have  no  doubt,  from  a  view  of  the  whole  act,  that 
the  legislature  intended  to  authorize  proceedings  under 
it  against  natural  persons  only.  The  twenty-first  sec- 
tion supposes,  that  the  person  giving  the  security  to 
appear  and  plead  to  any  action  to  be  brought,  would, 
if  within  the  State,  be  subject  to  a  suit ;  and  we  think 

[105] 


§  95    CORPORATIONS  AND  REPRESENTATIVE  PERSONS.  [CH.  IV. 

a  foreign  corporation  never  could  be  sued  here.  The 
process  against  a  corporation  must  be  served  on  its 
head,  or  principal  officer,  within  the  jurisdiction  of  the 
sovereignty  where  this  artificial  body  exists.  If  the 
president  of  a  bank  of  another  State,  were  to  come 
within  this  State,  he  would  not  represent  the  corpora- 
tion here ;  his  functions  and  his  character  would  not 
accompany  him,  when  he  moved  beyond  the  jurisdic- 
tion of  the  government  imder  whose  laws  he  derived 
his  character ;  and  though,  possibly,  it  would  be  com- 
petent for  a  foreign  corporation  to  constitute  an  attor- 
ney to  appear  and  plead  to  an  action  instituted  under 
another  jurisdiction,  we  are  clearly  of  the  opinion  that 
the  legislature  contemplated  the  case  of  a  liability  to 
arrest,  but  for  the  circumstance,  that  the  'debtor  was 
without  the  jurisdiction  of  the  process  of  the  courts  of 
this  State ;  and  that  the  act  in  all  its  provisions,  meant, 
that  attachments  should  go  against  natural,  not  arti- 
ficial, or  mere  legal  entities.  The  first  section  speaks 
of  persons,  and  throughout  the  act,  natural  persons 
only  were  intended  to  be  subjected  to  its  provisions."^ 

§  95.  In  Pennsylvania  a  contrary  view  w^as  taken,  in 
an  elaborate  opinion  pronounced  by  Rogers,  J.,  on  a 
motion  to  dissolve  an  attachment  because  the  defend- 
ant was  a  foreign  corporation.  "In  order  to  sustain 
the  motion,"  said  the  judge,  "  it  will  be  necessary  for 
the  defendants  to  show  that  they  are  not  embraced  by 
the  words  and  spirit  of  the  act. 

"  It  is  difficult  to  conceive  that  if  corporations  are 
artificial  persons,  —  if  they  can  do  all  acts  that  natural 

'  i^f  Queen  v.  Middlctown  Manufiicturinir  Co.  16  Johnson,  5. 

[  l'»6  ] 


CH.  IV.]     CORPORATIONS  AND  REPRESENTATIVE  PERSONS.         §  95 

persons  may,  —  if  they  can  sue  within  a  foreign  juris- 
diction, why  they  should  not  also  be  liable  to  suit,  in 
the  same  manner,  and  under  the  same  regulations  as 
domestic  corporations.  The  reason  why  they  have  not 
been,  in  point  of  flict,  more  frequently  sued,  is  given 
by  Chief  Justice  Spencer,  in  16  Johns.  5. 

" '  The  process  against  a  corporation,  by  the  common 
law,  must  be  served  on  its  head,  or  principal  officer, 
within  the  jurisdiction  of  the  sovereignty  where  this 
artificial  body  exists.     If  the  president   of  a  bank  of 
another  State  were  to  come  within  this  State,  he  would 
not  represent  the  corporation  here :  his  functions  and 
his   character   w^ould   not   accompany   him,  when    he 
moved   beyond   the  jurisdiction    of   the    government 
under  whose  laws  he  derived  his  character.'     That  this 
would  be  the  case,  when  he  w^as  within  the  State  on 
business  unconnected  with  the  corporation,  there  can 
be  no  question ;  but  wdiere  a  corporation  locates  the 
president,  or   other   officer,  within  the  State,  for  the 
express  purpose   of  making   contracts   here,  wdiether 
process  served  on  him  w^ould  not  be  sufficient,  is  a  ques- 
tion which  I  shall  not  undertake  to  determine,  because 
it  does  not  necessarily  arise.     There  is  nothing,  then,  in 
the  nature  of  a  corporation  to   exempt  it  from  suit. 
The  difficulty  arises  from  there  being  no  person  within 
the  limits  of  the  State  on  whom  you  can  serve  your 
process. 

"  With  the  multiplication  of  corporations,  w  hicli  has 
and  is  taking  place  to  an  almost  indefinite  extent,  there 
has  been  a  corresponding  change  in  the  law  in  relation 
to  them.  There  was  a  time  when  it  w^as  supposed  that 
no  suit  could  be  sustained  against  them,  unless  upon  an 
express  contract,  under  the  seal  of  the  corporation.     It 

[107] 


§  95         CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    [CH.  IV. 

is  now  held,  that  they  are  liable  in  trespass,  and  in  case, 
upon  an  implied  contract.  This  change  in  the  law  has 
arisen  from  a  change  of  circumstances,  from  that  silent 
legislation  by  the  people  themselveis,  which  is  continu- 
ally going  on  in  a  country  such  as  ours,  —  the  more 
wholesome,  because  it  is  gradual,  and  wisely  adapted 
to  the  peculiar  situation,  wants,  and  habits  of  our 
citizens. 

"  The  motion  to  dissolve  the  attachment  is  made  on 
the  ground  that  the  defendant  is  a  foreign  corporation, 
and,  as  such,  is  not  v/ithin  the  act  of  1705,  nor  liable  to 
attachment  by  the  custom  of  London.  The  effect  of 
sustaining  the  motion,  will  be  to  deny  the  plaintiffs, 
citizens  of  Pennsylvania,  all  remedy  in  this  State,  on  a 
contract  made  here,  and  to  deprive  them  of  a  special 
lien  on  the  g-oods  attached.     It  will  be  for  the  defend- 

o 

ants,  then,  to  show  most  clearly,  that  foreign  corpora- 
tions do  not  come  within  the  intention  of  the  laws  reg- 
ulating attachments. 

"  When  we  consider  the  number  of  corporations 
which  now  exist,  their  continual  increase,  the  extent  of 
their  operations,  the  establishment  of  agents  within  this 
State  for  the  express  purpose  of  making  contracts  here, 
it  is  difficult  to  conceive  a  valid  reason  why  they  should 
be  exempted  from  the  operation  of  laws,  which  regulate 
the  contracts  of  individuals,  and  domestic  corporations. 
They  are  not  such  favorites  in  courts  of  justice,  as  to 
claim  exemption  on  that  ground. 

"The  reason  of  the  passage  of  the  act  of  1705  is  set 
forth  in  the  preamble  to  be, '  That  the  laws  of  this  gov- 
ernment have  hitherto  been  deficient  in  respect  of  at- 
tachments, so  that  the  effects  of  persons  absenting  are 
not  cfT'ually  liable  with  those  of  persons  dwelling  upon 
[108] 


en.  IV.]  CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    §  95 

the  spot,  to  make  restitution  for  debts  contracted  or 
owing  within  this  province,  to  the  great  injury  of  the 
inhabitants  thereof,  and  the  encouragement  of  such  un- 
worthy persons  as  frequently  by  absconding,  make  ad- 
vantage of  the  defect  aforesaid.' 

"  In  the  third  section, '  provided  always,  that  no  writ 
of  attachment  shall  hereafter  be  granted  any  person  or 
persons'  effects,  but  such  only  as  at  the  time  of  granting 
such  writs  are  not  resident  or  residing  within  this  prov- 
ince, or  are  about  to  remain,  or  make  their  escape,  out 
of  the  same,  and  shall  refuse  to  give  sufficient  security 
to  the  complainant  for  his  debt,  or  other  demand,  be- 
fore he  depart  the  said  province.' 

"  It  cannot,  I  think,  be  reasonably  doubted  that  cor- 
porations are  within  the  words  of  the  act.  When  the 
word  person  is  used  in  a  statute,  corporations  as  well  as 
individuals  are  included.  As,  where  the  inhabitants  of 
a  town  are  bound  to  repair  a  bridge,  or  to  pay  taxes, 
corporations,  as  well  as  individuals,  are  liable. 

"Are  foreign  corporations  within  the  spirit  of  the 
act  ?  "VYe  are  so  to  construe  the  act,  as  to  suppress  the 
mischief  and  advance  the  remedy.  The  mischief  which 
the  legislature  intended  to  remedy  was,  that  the  effects 
of  persons,  artificial  or  natural,  who  were  absent,  were 
not  equally  liable  with  those  of  persons,  artificial  or 
natural,  dwelling  upon  the  spot,  to  make  restitution  for 
debts  contracted  or  owing  within  the  province.  For- 
eign corporations  and  foreign  individuals  were  placed 
on  a  better  footing  before  the  passage  of  the  act,  than 
domestic  corporations  or  citizens  of  the  State  ;  for  rem- 
edy w^hereof,  the  act  in  question  was  passed,  enabling 
the  court  to  compel  an  appearance  by  attachment  of 
their  effects  w^ithin  the  State. 

10  [109] 


§  95         CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    [CH.  IV 

"  It  may  be  proper  here  to  remark,  that  the  act  has 
been  already  construed  to  extend  to  persons  who  have 
never  been  within  the  State  ;  it  has,  therefore,  the 
same  appHcation  to  corporations  which  are  stationary, 
as  to  natural  persons.  Foreign  corporations,  it  is  true, 
are  necessarily  absent  from  the  State,  but  may  have 
effects  within  it,  and  may  contract  and  owe  debts,  to 
citizens  of  this  State,  which  they  may  be  unable  or  un- 
willing to  pay. 

"  It  is  no  answer  to  say,  that  this  is  a  mere  question 
of  remedy ;  that  the  corporation  may  be  sued  in  Massa- 
chusetts, as  in  this  case,  or  in  Europe  or  Canton,  as  the 
case  may  be. 

"But  suppose  suit  should  be  commenced  within  a 
foreign  jurisdiction,  judgment  obtained,  and  execution 
issued,  and  the  company  should  2^1'ove  insolvent,  (and 
daily  experience  shows  us  that  this  is  no  improbable 
supposition,)  what  would  be  the  remedy  against  their 
effects  within  this  State  ?  Relief  must  depend  entirely 
on  the  laws  of  the  foreign  government.  If  there  was 
j)ower  in  their  courts  to  compel  an  assignment,  or  to 
sequester  their  property,  in  and  out  of  the  State,  there 
might  be  some  remedy,  however  inadequate,  to  the 
creditor.  I  cannot  bring  myself  to  believe,  that  the 
legislature  ever  intended  that  citizens  of  Pennsylvania, 
who  had  the  property  within  their  grasp,  or  a  lien  upon 
it,  should  be  deprived  of  that  lien,  and  depend  for  the 
payment  of  their  debts  on  the  laws  of  a  sister  State,  or 
of  a  foreign  government,  and  the  more  especially  am  I 
unwilling  to  adopt  that  construction  at  this  time,  when 
this  contract  was  made,  and  contracts  are  daily  making 
by  foreign  corporations,  within  the  limits  of  this  State, 
and  unTler  the  jurisdiction  of  this  court.  If  this  were  a 
[110] 


CH.  I  v.]    CORPORATIONS  AND  REPRESENTATIVE  PERSONS.        §  95 

case  of  doubtM  construction,  the  argument  ah  inconve- 
nienii  would  be  exceedingly  strong,  and  would  go  far 
with  me  in  the  determination  of  the  case. 

"  But  it  is  said  that  corporations  are  not  within  the 
act,  because  it  is  provided, '  That  if  the  plaintiff  in  the 
attachment  obtain  a  verdict,  judgment,  and  execution, 
for  the  money  and  goods  in  the  garnishee's  possession, 
yet  the  defendant  in  the  attachment  mai/,  at  any  time 
before  the  money  be  paid,  ^^z;/  in  hail  to  the  plaintiff's 
action,  upon  which  the  attachment  is  grounded,  whereby 
the  garnishee  will  and  shall  be  immediately  discharged.' 
"  Granting,  merely  for  the  sake  of  the  argument,  that 
^bail  to  the  plaintiff's  action,'  as  used  in  the  act  of  as- 
sembly, means  special  bail  only,  and  agreeing,  as  I  cer- 
tainly do,  that  a  corporation  cannot  enter  special  bail, 
yet  it  by  no  means  follows  that  the  effects  of  foreign 
corporations  cannot  be  attached,  under  the  act  of  1705. 
"  This  point  has  undergone  judicial  investigation,  in 
the  case  of  Carpentier  v.  The  Delaware  Insurance  Com- 
pan}^,  2  Binney,  264.    It  w\as  there  contended,  that  the 
plaintiff  could  not  enter  a  rule  of  reference,  because  the 
defendants  were  a  corporation.     That  in  every  case 
intended  to  be  referred,  an  appeal  was  given  ;  but  that 
in  no  case  could  it  be  obtained  by  the  defendant,  with- 
out entering  into  a  recognizance  conditioned  to  pay 
the  debt  and  costs,  or  to  surrender  him  to  jail.     That  a 
corporation  could  not  give  such  a  recognizance,  because 
it  could  not  be  surrendered. 

"  From  this  it  was  inferred,  that  corporations  defend- 
ants were  not  within  the  act,  in  the  same  manner,  and 
by  the  same  arguments  as  it  is  here  contended  that 
corporations  are  not  within  the  act  of  1705,  because 
bail'to  the  plaintiff's  action  means  special  bail,  and  that 

[111] 


§  96         CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    [CH.  IV. 

they  cannot  enter  such  bail.  The  court,  however,  de- 
cided that  the  plaintiffs  were  not  prevented  from  enter- 
ins:  a  rule  of  reference,  which  in  effect  decided  the 
principal  point  in  this  case.  If  bodies  corporate,  say 
the  court,  are  not  within  the  law,  it  must  be  because 
there  is  something  in  their  nature  inconsistent  with  its 
provisions;  for  they  are  not  expresdy  excepted.  It  is 
contended  they  must  be  excepted  by  implication,  be- 
cause they  are  excluded  from  the  benefit  of  an  appeal, 
which  is  given  on  condition  incompatible  with  the 
nature  of  a  corporation.  'It  is  clear,'  says  the  Chief 
Justice, '  that  one  of  the  alternatives  of  this  condition 
is  not  applicable  to  a  corporation,  which  is  not  a  nat- 
ural, but  political  body,  incapable  of  being  surrendered 
or  imprisoned.  I  agree  that  the  form  of  the  recogniz- 
ance is  not  applicable  to  a  body  corporate,  but  from 
this  I  draw  a  different  conclusion.  I  do  not  infer  that 
the  defendant  can  have  no  appeal,  but  that  they  may 
have  an  appeal  without  entering  into  any  recognizance.' 
"  In  this  case,  I  do  not  infer  that  the  effects  of  foreign 
corporations  cannot  be  attached,  but  should  infer,  were 
it  not  for  considerations  which  I  shall  state,  that  the 
attachment  should  be  dissolved  by  entering  an  appear- 
ance without  bail."  ^ 

§  96.  This  subject  was  discussed  before  the  Supreme 
Court  of  Georgia,  by  w^hich  a  full  and  able  decision  was 
given,  asserting  the  liability  of  corporations  to  attach- 
ment, portions  of  which  it  is  not  inappropriate  to  pre- 
sent here,  though  our  quotations  have  already  been 
somewhat  extended. 

'  Hiishel  V.  Commonwcaltb  Ins.  Co.,  15  Serg.  and  Rawle,  173. 

[112] 


CH.  IV.]  CORPORATIONS  AND  REPRESEXTATH-E  PERSONS.    §  96 

"  The  question  is,  whether  a  creditor  is  entitled  to 
the  remedy  at  law,  by  attachment,  against  a  foreign 
corporation,  which  our  statutes  give  him  against  a  nat- 
ural person,  who  is  his  debtor. 

"Persons,  by  non-residence,  and  by  placing  them- 
selves in  any  one  of  the  several  predicaments  described 
in  the  statute,  are  not  amenable  to  the  jurisdiction  of 
the  courts,  by  the  ordinary  process  of  the  Imu.  In  such 
cases,  before  the  passage  of  the  attachment  laws,  there 
was  no  legal  remedy  by  which  the  payment  of  debts 
could  be  enforced.  That  was  the  mischief  to  be  rem- 
edied. These  laws  supplied  the  remedy.  The  attach- 
ment laws  are,  then,  remedial  statutes,  and  are  to  be 
construed  so  as  to  advance  the  remedy  and  to  suppress 
the  mischief. 

"  We  disclaim  the  power  of  this  court  to  subject  cor- 
porations to  the  operation  of  this  act,  upon  the  score  of 
policy,  if  they  are  not  within  its  provisions,  fairly,  rea- 
sonably, and  hberally  construed.  We  think  that  cor- 
porations are  embraced  within  the  provisions  of  the  act, 
because  the  terms  used  in  the  act,  which  describe  the 
persons  made  subject  to  its  operation,  are  descriptive  of 
corporations.  Those  words  are  '  person,'  '  party,'  '  de- 
fendant,' '  debtor.'  Either  of  these  words  describes  a 
corporation.  It  is  a  person  under  the  law  —  an  artifi- 
cial person,  created  by  the  legislature.  It  has  a  name 
—  a  local  habitation  too.  It  is  not  a  citizen  in  every 
sense  of  the  word,  but  it  is  an  inhabitant  —  it  dwells 
where  by  law  it  is  located.  A  corporation  is  a  'judicial 
person'  —  a  legal  entity.  For  many  purposes,  it  has  a 
legal  being.  It  can  contract,  own  property,  grant  ac- 
quittances, convey  titles,  become  the  obligee  of  a  bond, 
prosecute  suits,  appear,  answer,  and  defend.  Now 
10*  [113] 


§  96         CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    [CH.  IV. 

where  the  law-making  power  uses  the  word  person,  it  is 
•to  be  presumed  that  the  %«/ meaning  is  intended,  and 
not  the  social  or  ordinary  meaning.  The  word  is  de- 
scriptive of  all  who  are,  in  professional  parlance,  persons. 
So  parti/  and  defendant,  are  words  as  applicable  to  cor- 
porations as  to  natural  persons;  because  they  may  be, 
equally  with  natural  persons,  ^j«r/zV5  and  defendants. 
The  word,  however,  used  in  the  act  with  most  signifi- 
cance, and  used  most  frequently,  is  debtor.  It  would 
seem  that  the  General  Assembly,  by  using  that  term, 
intended  to  guard  against  the  very  construction  now 
combatted,  to  wit,  that  the  act  applies  only  to  natural 
persons.  That  is  a  generic  term,  and  embraces  all  who 
owe  debts,  whether  natural  persons,  partnerships,  or 
corporations.  These  are  not  merely  verbal  criticisms. 
These  words  constitute  material  parts  of  the  enacting 
clauses  of  the  statute,  and  give  to  them  significance. 
They  define  the  class  of  persons  which  the  act  makes 
liable  to  the  process. 

"Again,  it  is  clear  that  a  corporation  may  occupy 
one  of  the  positions,  to  wit,  the  position  of  a  non- 
resident, in  which  a  debtor  must  be  placed  before  the 
attachment  can  issue.  It  may  reside  out  of  the  State, 
and  hence,  we  infer,  that  the  statute  applies  to  it.  We 
have  seen  that  a  corporation  is  an  inhabitant,  or  resi- 
dent of  the  State,  where,  by  law,  it  is  located.  In  that 
State,  therefore,  where  it  is  not  located,  it  is  a  non- 
resident. If  it  does  not  reside  in  Georgia,  it  resides  out 
of  the  State,  and  falls  into  that  predicament  in  which 
the  process  by  the  act  is  authorized  to  be  issued. 

"  There  is  one  rule  of  statutory  construction  recog- 
nized in  England,  and  by  the  Supreme  Court  of  the 
UniteTl  States,  which  is  conclusive  of  this  question.  It 
[114] 


CH.  IV.]    CORPORATIONS  AND  REPRESENTATIVE  PERSONS.         §  98 

is  this.  Corporations  are  to  be  deemed  and  considered 
as  pet'sons,  lolien  the  circumstances  m  ivliich  tlicy  are  ijlaccd 
are  identical  tuith  those  of  natural  ^y^t'soiis,  expressly  included 
in  a  statute^  -^ 

§  97.  In  Alabama,^  Louisiana;'',  Missouri,*  New-Hamp- 
shire;^ and  Virginia,*'  it  has,  in  like  manner,  been  de- 
cided that  foreign  corporations  are  liable  to  attachment; 
and  this  view  may  be  considered  as  settled  by  the 
weight  of  authority.  In  several  of  the  States,  where 
revisions  of  their  statutes  have  been  recently  made, 
they  are  expressly  subjected  to  the  operation  of  the 
process. 

§  98.  II.  We  will  now  consider  wdiat  natural  per- 
sons may  not  be  proceeded  against  by  attachment.  In 
New  York,  it  was  said,  in  a  case  which  arose  at  an  early 
period,  that  the  statute  of  that  State  respecting  absent 
debtors,  did  not  warrant  proceedings  against  heirs,  ex- 
ecutors, trustees,  or  others  claiming  merely  by  right  of 
representation."  Subsequently  this  doctrine  was  recog- 
nized and  affirmed,  under  another  statute,  which  the 
court  said  was  much  more  explicit  than  that  which  was 
the  subject  of  the  former  construction.  Under  this  sec- 
ond statute  an  attachment  might  be  obtained  by  a  cred- 

^  South  Carolina  Railroad  Co.  v.  McDonald,  5  Georgia,  531. 

^  Planters  and  Merchants  Bank  of  ^lobile  v.  Andrews,  8  Porter,  404. 

*  Martin  v.  Branch  Bank  of  Alabama,  1 4  Louisiana,  (La.)  415;  Hazard  v. 
Agricultural  Bank  of  Mississippi,  11  Robinson,  326. 

*  St.  Louis  Perpetual  Ins.  Co.  r.  Cohen,  9  iMissouri,  421. 
^  Libbey  i\  Ilodgdon,  9  Xew-IIampshire,  394. 

®  U.  S.  Bank  v.  ^Merchants  Bank,  1  Robinson,  (Va.)  573. 
^  Jackson  v.  Walsworth,  1  Johns.  Cas.  372. 

[115] 


§  100      CORPORATIONS  AND  REPRESENTATIVE  PERSONS.    [CH.  IV. 

iter  "  having  a  demand  against  the  deUor  iiersonallijr  ^ 
The  first  statute  having  been  less  explicit  than  the  sec- 
ond, it  may  be  supposed  that  the  first  decision  rested 
on  general  principles. 

§  99.  In  Connecticut,  it  was  held  that  non-resident 
executors  could  not  be  considered  as  debtors  of  the 
plaintiff,  on  account  of  a  debt  due  from  their  testator, 
and  therefore  could  not  be  proceeded  against  by  attach- 
ment.- And  so  in  Pennsylvania,^  and  South  Carolina,* 
and  Louisiana,^  and  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Columbia,  as  regards  an  ad- 
ministrator.^ 

§  100.  But  an  executor  or  administrator  who  enters 
upon  leasehold  property  held  by  the  testator  or  intes- 
tate in  his  lifetime,  or  who  receives  the  rents  and  pro- 
fits thereof,  is  chargeable  in  the  delet  and  detinet,  or  di- 
rectly on  the  covenant,  as  an  assignee,  and  need  not  be 
named  as  executor  or  administrator.  -Thus,  a  lessee 
covenanted  that  he,  his  executors,  administrators,  or  as- 
signs would,  at  his  and  their  own  proper  costs  and 
charges,  pay  and  discharge  all  taxes,  duties,  and  assess- 
ments which  should,  during  the  terra,  be  imposed  upon 
the  demised  premises;  and  the  lessee  died  intestate, 
and  letters  of  administration  were  granted  to  a  non- 


1  Matter  of  Hurd  and  Selden,  9  Wendell,  465. 

2  Stanton  v.  Holmes,  4  Day,  87. 

»  M'Coombe  v.  Duncli,  2  Dallas,  73 ;  Pringle  v.  Black's  Ex'rs,  Ihld,  97. 
*  Weyman  v.  Murdock,  Harper,  125. 

Debuys  v.  Yerbey,  1  iSIartin,  New  Ser.  380. 

Henderson  v.  Henderson,  5  Cranch,  C.  C.  4G9. 


CIL  IV.]    CORPORATIONS  AND  REPRESENTATIVE  PERSONS.      §  101 

resident,  who  received  the  rents,  issues,  and  profits  of 
the  demised  premises.  An  assessment  was  imposed 
upon  the  demised  premises  in  the  laying  out,  opening, 
and  continuing  of  a  street,  a  portion  of  which  the  les- 
sor was  obliged  to  pay ;  who  thereupon  instituted  pro- 
ceedings by  attachment  against  the  administrator, 
alleging  that  he  was  indebted  to  him  j^crsonalJt/ ,  and  the 
court  sustained  the  attachment.^ 

§  101.  In  New  Jersey  a  writ  of  foreign  attachment 
cannot  issue  against  the  heirs  of  a  deceased  debtor,^  nor 
against  executors  or  administrators.^ 


1  Matter  of  Galloway,  21  Wendell,  32. 
-  Peacock  i-.  Wildes,  3  Halsted,  179. 
^  Haight  V.  Bergh,  3  Green,  183. 

[117] 


CHAPTER   V. 

OF  THE   AFFIDAVIT   FOR   OBTAINING   AN   ATTACHMENT. 

§  102.  Wherever  an  affidavit  is  a  prerequisite  to  the 
issue  of  an  attachment,  its  terms  are  regulated  by  stat- 
ute. In  hardly  any  two  States  are  the  laws  on  this 
subject  identical;  though  in  some  instances  they  are 
sufficiently  similar  to  give  the  adjudications  in  one 
State  more  or  less  applicability  in  another.  Under 
these  circumstances  it  is  very  difficult  to  elicit  from  the 
reported  cases  any  general  principles,  for  which  univer- 
sal or  very  extended  acceptation  could  be  claimed. 
The  most  that  can  be  accomplished  is,  to  present  such 
decisions  as  may  be  supposed  to  be  susceptible  of  appli- 
cation to  any  statutory  provisions ;  to  a  certain  extent 
avoiding  those  which  are  confined  merely  to  the  ques- 
tion of  conformity  with,  or  variance  from,  particular 
phraseologies. 

§  103.  The  first  point  to  be  determined  in  any  case 
is,  whether  in  fact  an  affidavit  has  been  made.  This  is 
to  be  decided  by  an  inspection  of  the  papers  in  the 
cause ;  bat  though  a  complete  affidavit  do  not  appear 
there,  it  does  not  follow,  of  necessity,  that  the  proceed- 
ings are  thereby  vitiated,  if  it  be  made  to  appear  that 
it  Avas^in  fact  made,  though  not  properly  authenticated. 
[118] 


CH.  Y.]  AFFIDAVIT    FOR   ATTACIDIENT.  §  10- 

Thus,  ^vhere  that  appeared  among  the  papers  which 
wanted  only  the  signature  of  the  judge  to  the  jurat,  to 
make  it  a  complete  affidavit,  and  across  the  face  of  the 
document  were  written  the  words,  "sworn  and  sub- 
scribed before  me,"  in  the  handwriting  of  the  judge, 
but  not  signed  by  him ;  and  immediately  below,  and  on 
the  same  paper,  was  written  the  fiat,  ordering  the  at- 
tachment to  issue,  which  was  signed  by  him ;  and  both 
the  unfinished  jurat  and  the  order  for  the  attachment, 
bore  the  same  date;  and  the  order  recited  that  the 
judge  had  read  the  petition,  affidavit,  and  the  docu- 
ments annexed  ;  it  was  held,  that  he  acted  on  the  pa- 
per as  an  affidavit  sworn  to  before  himself;  and  in 
signing  the  order  containing  that  expression,  he,  by  the 
strongest  implication,  certified  that  it  had  been  sworn 
to  before  himself;  and  that  the  want  of  his  signature 
to  the  jurat  was  no  sufficient  ground  for  dissolving  the 
attachment.-^ 

§  104.  In  Alabama,  in  a  case  of  the  same  descrip- 
tion, it  was  considered  that  upon  a  motion  to  quash  the 
attachment,  every  thing  disclosed  by  the  proceedings 
should  be  taken  to  be  true ;  that  the  court  would  sup- 
pose the  affidavit  to  have  been  regularly  taken ;  and 
that  if  such  was  not  the  fact,  it  was  to  be  taken  advan- 
tage of  by  plea  in  abatement,  and  not  by  motion  to 
quash.^  Afterwards,  in  another  case,  of  identical  char- 
acter, the  defendant  pleaded  in  abatement  the  want  of 
the  signature  of  the  officer ;  to  which  the  plaintiff  re- 
plied that  the  affidavit  was  in  point  of  fact  made,  to 


1  English  r.  Wall,  12  Robinson  (La.)  132. 
-  Lowrv  r.  Stowe,  7  Porter,  483. 

[110] 


§  105  AFFIDAVIT    FOR    ATTACH3IENT.  [CH.  V. 

which  the  defendant  demurred ;  and  it  was  held,  that 
the  plea  was  fully  answered  by  the  replication,  and 
that,  though  it  would  have  been  more  regular  for  the 
officer  to  have  certified  the  affidavit,  the  court  were  not 
prepared  to  say  that  his  omission  to  do  so  necessarily 
vitiated  the  proceedings.^ 

§  105.  In  every  affidavit  for  an  attachment,  there 
are  two  distinct  parts,  one  relating  to  the  amount  due 
from  the  defendant  to  the  plaintiff,  the  other  to  the 
facts  relied  on  as  a  ground  for  obtaining  the  writ.  In 
regard  to  the  first  the  following  case  came  up  in  Louis- 
iana, where  it  is  required  by  the  Code  of  Practice  that 
the  petitioner  shall  make  a  declaration  nnder  oath,  at 
the  foot  of  the  petition, "  stating  the  amount  of  the  sum  due 
himr  The  affidavit  stated  that  the  defendants  were 
indebted  to  the  plaintiff  "in  a  sum  exceeding  two 
thousand  dollars;"  and  it  was  decided  that  it  v/as  sj)ec- 
ified  with  sufficient  certainty  that  at  least  that  sum  was 
due,  and  that  the  attachment  might  well  lie  for  that 
sum,  and  as  it  did  not  issue  for  a  greater,  it  could  not 
be  dissolved."  Under  the  same  law,  however,  it  was 
held  that  where  any  sum  the  plaintiff  might  state 
would  be  conjectural,  it  could  not  serve  as  the  basis  of 
a  positive  oath,  and  an  attachment  would  not  lie ;  the 
case  being  that  of  one  partner  suing  another  for  a  spe- 
cific amount,  as  a  debt  resulting  from  the  partnership 
transactions,  when  there  had  been  no  settlement  of  the 
partnership  accounts.^ 


'  IMc'Cartney  i-.  Branch  Bank,  3  Alabama,  709. 
^  Flower  v.  Grinitli's  Heirs,  12  Louisiana,  345. 
"  Levy  V.  Lew,  11  Louisiana,  581. 

[120]' 


CH.  v.]  •AFFIDAVIT    FOR   ATTACHMENT.'  §108 

§  106.  Under  a  statute  requiring  an  affidavit  that 
the  defendant  is  justly  indebted  to  the  plaintiff  "in  a 
sum  exceeding  fifty  dollars/'  and  that  the  sum  should 
be  specified,  it  was  held  that  a  statement  of  the  defend- 
ant's indebtedness  in  the  sum  of  $300  was  sufficient, 
without  inserting  the  words,  "  in  a  sum  exceeding  the 
sum  of  fifty  dollars."  ^ 

§  107.  While  it  is  always  a  safe  rule  to  follow  strictly 
the  language  of  the  statute,  it  is  not  in  every  case  nec- 
essary. Quahfying  words  should  not  be  omitted ;  but 
the  omission  of  Vv'ords  which  have  not  that  character, 
while  by  those  remaining  the  sense  and  scope  of  the 
law  are  fulfilled,  will  not  vitiate  the  affidavit.  For 
example,  where  it  was  required  that  the  affidavit  should 
state  that  the  defendant  was  "justly  indebted"  to  the 
plaintiff,  it  was  considered  that  the  word  "justly"  was 
not  intended  to  qualify  the  word  "  indebted,"  and  that 
its  omission  from  the  affidavit  was  no  material  defect.^ 
Where  the  law  required  the  affidavit  to  state  that  the 
cause  of  action  sued  on  arose  on  a  contract,  and  a 
plaintiff  did  not  swear  positively  to  a  contract,  but 
swore  to  certain  facts,  from  which  perhaps  a  jury  might 
infer  a  contract,  and  perhaps  not,  the  affidavit  was  held 
to  be  insufficient,  and  the  attachment  was  quashed.^ 

§  108.  In  that  portion  of  the  affidavit  which  states  the^ 
fact  or  facts  upon  which  it  is  sought  to  obtain  the  attach- 
ment, great  care  should  be  taken  to  make  the  allega- 


^  Huglies  V.  Martin,  1  Arkansas,  38G. 

2  Livengood  v.  Shaw,  10  Missouri,  273.     Scd  contra,  Thompson  v.  To-sr- 
son,  1  Harris  &  McHenry,  504. 

^  Jacoby  v.  Gogell,  5  Serg.  &  Eawle,  450. 

11  [121] 


§  109  AFFIDAVIT   FOR   ATTACHMENT..  ^  [CH.  V. 

tions  as  specific  as  possible.  There  is  usually  no  diffi- 
culty in  ascertaining  from  each  particular  statute  the 
grounds  for  issuing  the  writ ;  and  it  is  usually  a  safe 
rule  to  follow  the  exact  words  of  the  law ;  but  in  doing 
so  it  is  possible  to  embrace  too  much,  and  thereby 
vitiate  the  whole.  For  example,  where  there  are  sev- 
eral different  facts  contemplated,  any  one  of  which 
would  be  sufficient  to  authorize  the  issuing  of  the  writ, 
an  affidavit  stating  the  existence  of  one  or  the  other  of 
two  distinct  facts,  would  be  bad,  because  of  the  impos- 
sibility of  determining  which  was  relied  on  as  sustain- 
ing the  attachment. 

§  109.  Thus,  imder  a  statute  which  authorized  an 
attachment,  1.  Where  the  defendant  is  about  to  remove 
his  effects ;  2.  Where  he  is  about  to  remove  privately 
out  of  the  county ;  and  3.  When  he  absconds  or  con- 
ceals himself,  so  that  the  ordinary  process  of  law  can- 
not be  served  on  him ;  an  attachment  was  obtained  on 
an  affidavit  that  the  defendant  "  was  about  to  remove 
from  and  without  the  limits,  or  so  absconds  and  con- 
ceals himself,  that  the  ordinary  process  of  law  cannot 
be  served  on  him ; "  and  it  was  held  that  it  must  be  set 
aside.  The  first  member  of  the  oath  was  plainly  not 
within  the  statute,  and  though  the  latter  was,  yet  it  was 
rendered  inefficient  by  its  connection  with  the  former, 
through  the  disjunctive  conjunction  or,  whereby  it  be- 
came uncertain  which  state  of  facts  existed.^  Subse- 
quently the  same  court  in  a  similar  case  ruled  the  same 
way  again,  and  intimated  that  they  would  consider  an 


^  Ilagood  V.  Hunter,  1  ]\rCorcl,  511.      Sec,  also,  Barnard  r.  Scbre,  2  A. 
K.  Marshall,  151. 

[122] 


CH.  v.]  AFFIDAVIT    FOR   ATTACHMENT.  §111 

affidavit,  in  the  disjunctive,  as  bad,  althougli  either  of 
the  facts  deposed  to  might  be  sufficient.^ 

§  110.  Let  it  be  observed,  however,  that  where  the 
disjunctive  or  is  used,  not  to  connect  two  distinct  facts 
of  different  natures,  but  to  characterize  and  include  two 
or  more  phases  of  the  same  fact,  attended  with  the 
same  results,  the  construction  just  mentioned  would  be 
inapplicable.  For  instance,  where  the  statute  author- 
ized an  attachment  when  "  the  defendant  absconds,  or 
secretes  himself;"  it  was  considered  that,  from  the 
difficulty  of  determining  which  was  the  fact,  the  lan- 
guage comprised  but  one  ground,  and  the  disjunctive 
or  did  not  render  the  affidavit  uncertam.^  "  It  is,"  said 
the  court,  "  often  difficult,  if  not  impracticable,  for  the 
creditor  to  ascertain  whether  his  debtor  absconds  or 
secretes  himself:  he  has  to  rely  frequently  upon  such 
information  as  his  family  or  friends  will  give  him,  which 
cannot  always  be  confided  in  :  hence,  to  allow  sufficient 
latitude  to  the  creditor  in  making  his  affidavit,  and  to 
prevent  failures,  from  having  mistaken  the  cause  why 
the  debtor  is  liable  to  the  remedy,  the  law  has  very 
properly  provided  for  its  issuance  in  the  alternative." " 

§  111.  Under  a  similar  statute,  the  same  view  has 
been  expressed  in  Tennessee.  The  language  of  the 
statute  was,  "  so  absconds  or  conceals  himself  that  the 
ordinary  process  of  law  cannot  be  served  on  him."     It 


1  Devall  r.  Taylor,  Cheves,  5.     See,  also.  Jewel  v.  Howe,  3  Watts,  144 ; 
Wray  v.  Gilmore,  1  Miles,  75 ;  Shipp  v.  Davis,  Hardin,  65. 

2  Johnson  v.  Hale,  3  Stewart  &  Porter,  331. 
^  Cannon  i'.  Logan,  5  Porter,  77. 

[123] 


§  112  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

was  contended  that  "  absconds "  constituted  one  cause, 
and  "  conceals "  another ;  but  the  court  did  not  think 
so.  "  For,"  said  the  court,  "  although  the  two  words  are 
connected  by  or  instead  of  and,  yet  the  sense  of  the 
sentence  shows  that  or  is  used  copulatively,  constituting 
both  ^absconds'  and  'conceals,'  or  either  of  .them,  a 
sufficient  cause  for  suing  out  the  attachment.  In  the 
nature  of  things,  a  plaintiff  cannot  tell  whether  a  party 
absconds  or  conceals  himself  He  may  suppose  he  ab- 
sconds, when  he  only  conceals  himself,  and  vice  versa. 
To  compel  him  to  swear  that  the  party  is  doing  the  one 
only,  would  involve  the  plaintiff  in  endless  difficulty. 
Besides  the  question  of  conscience  that  must  always 
exist  with  the  party  about  to  take  the  oath,  he  would 
be  constantly  in  danger  of  having  his  attachment  abated 
on  the  plea  of  the  defendant,  who,  though  he  might  not 
have  absconded,  was  nevertheless  concealed,  or  if  not 
concealing  himself  may  have  been  absconding.  We 
think,  therefore,  that  the  Avords  '  so  absconds  or  conceals 
himself  constitute  but  one  cause."  ^ 

§  112.  Surplusage  in  an  affidavit,  not  inconsistent 
with  the  substantial  averment  required  by  the  statute, 
will  not  vitiate  it.  Thus,  where  the  person  making  the 
affidavit  stated  sundry  acts  of  the  defendant,  and  closed 
with  these  words  — "  affiant  further  saith  he  believes 
the  facts  above  stated  are  true,  and  that  said  defendant 
is  by  the  means  above  stated,  concealing  his  effects  so 
that,  the  claims  aforesaid  will  be  defeated  at  the  ordi- 
nary course  of  law;"  which  averment  was  in  compli- 

^  Conrad  v.  ]M'Gce,  9  Yerger,  428  ;  Goss  v.  Gowing,  5  Richardson,  477. 

'•  [  124  ] 


CH.  v.]  APHDATIT    FOR    ATTACHMENT.  §113 

ance  ^vith  the  law ;  it  was  held  that  the  unnecessary 
statements  did  not  vitiate  the  affidavit.^ 

§  113.   While,  however,  it  is  in  all  cases  advisable  to 
follow  the    exact   language    of  the    statute,  it  would 
seem  from  the  import  of  a  number  of  cases,  decided  in 
different  States,  that  if  the  words  of  the  affidavit  are  in 
substantial  compliance  with  the  terms  of  the  statute, 
or  necessarily  and  properly  imply  the  case  provided  for 
thereby,  it  will  be  sufficient.     Thus,  where  the  law  au- 
thorized an  attachment  when  the  debtor  "  is  about  to 
convey,  assign,  remove,  or  dispose  of  any  of  his  prop- 
erty or  effects,  so  as  to  defraud,  hinder,  or  delay  his 
creditors,"  it  was  held  that  an  affidavit  alleging  that  the 
defendant  was  "  about  to  convey  his  property  so  as  to 
hinder  or  delay  his  creditors,"  was  equivalent  to  alleging 
fraud,  and  that  therefore  it  was  not  necessary  to  use 
the  word  « defraud."  ^     So,  where  the  cause  for  which 
an  attachment  might  issue  was,  that  "  he  resides  out  of 
this  State,"  an  affidavit  that  the  defendant  "  is  a  non- 
resident," was   considered   sufficient.^     So,  where   the 
lano-uao-e  of  the  statute  was  "  that  the  debtor  so  absconds 
that  the  ordinary  process  of  law  cannot  be  served  on 
him,"  an  affidavit  that  the  debtor  hath  absconded  was 
considered  as  complying  with  the  substantial  require- 
ments of  the  law.^     So  an  affidavit  that  the  defendant 
"  is  about  removing,"  was  decided  to  be  in  conformity 
to  the  statute  which  provided  for  an  attachment  where 

^  Spear  v.  King,  6  Smedes  &  Marshall,  276. 

-  Curtis  V.  Settle,  7  ^Missouri,  452. 

'  Grabam  v.  Ruff",  8  Alabama,  171. 

*  WciUis  V.  Wallace,  6  Howard  (Mi.)  254. 

11*  [125] 


§  114  AFFIDAVIT    FOR    ATTACHMENT.  [ciI.  V. 

the  debtor  "  is  removing."  ^  So  where  the  statute  gives 
an  attachment  where  the  debtor  "  is  removing  or  about 
to  remove  himself  or  his  property  beyond  the  hmits  of 
the  State  J "  and  suit  was  brought  against  the  owner 
and  master  of  a  steamboat,  alleging  that  he  was  "about 
to  remove  the  said  steamboat  beyond  the  limits  of  this 
State,"  it  was  considered  that  however  defective  the 
allegation  might  be,  in  stating  the  defendant  to  be 
about  to  remove  a  single  piece  of  property,  yet  that  the 
affidavit  was  equivalent  to  stating  that  he  was  about  to 
remove  himself,  since,  as  he  was  master  of  the  boat,  if 
he  removed  the  boat  his  relation  to  her  necessarily 
involved  his  own  removal.^  So  where  the  statute  re- 
quired the  affidavit  to  state  "that  the  defendant  is 
about  to  remove  himself  and  his  effects  so  that  the 
claim  of  the  plaintiff  will  be  defeated;"  a  statement 
"  that  the  defendant  will  remove  himself  and  his  effects 
beyond  the  limits  of  the  State  before  the  plaintiff's 
claim  could  be  collected  by  the  ordinary  course  of 
law,  and  that  he  is  transferring  and  conveying  away  his 
property,  so  that  the  claim  of  the  plaintiff  will  be 
defeated,  or  cannot  be  made  by  the  regular  course  of 
law,"  was  held  to  be  a  substantial  compliance  with  the 
law.^  And  in  Arkansas  where  the  affidavit  was  not 
entitled  in  the  suit,  and  did  not  describe  the  person 
who  made  it,  as  plaintiff,  or  the  debtor  named  in  it,  as 
defendant,  it  was  considered  to  be  sufficient.^ 

§  114.   The  fact  that  iim  affidavits,  of  the  same  im- 

^  Lee  V.  Peters,  1  Smedes  &  Marshall,  503. 
*  Runyan  v.  Morgan,  7  Humplireys,  210. 
^  Dandridgc  v.  Stevens,  12  Smedes  &  ^Marshall,  723. 
*  *  Cheadle  v.  Eiddle,  1  English,  480. 

[126] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  117 

port,  appear  in  the  record,  will  not  invalidate  the 
attachment.  The  surplusage  of  a  second  affidavit  will 
be  disregarded.-^ 

§  115.  In  an  action  against  two  joint  debtors,  if  the 
affidavit  be  insufficient  as  to  one  of  them,  it  will  not 
authorize  an  attachment  against  the  property  of  both.^ 

§  116.  It  is  proper  that  an  affidavit  should  be  made 
as  near  as  practicable  at  the  time  of  the  institution  of 
the  suit ;  but  it  is  believed  to  be  a  somewhat  general 
practice  to  allow  attachments  to  issue  on  affidavits  made 
some  time  before  the  issue  of  the  writ.  And  in  South 
Carolina,  where  the  lavv'  required  the  affidavit  to  be 
made  at  the  time  of  filing  the  declaration,  it  was  de- 
cided that  so  constant  and  uniform  had  been  the  practice 
to  the  contrary,  that  it  ought  not  to  be  contested  or 
varied.  "  It  will  be  seen  at  once,"  said  the  court,  "  that 
unless  a  party  is  present  to  make  the  affidavit  at  the 
filing  of  the  declaration,  a  foreigner,  or  even  one  of 
our  own  countrymen,  who  should  accidentally  be  absent 
from  the  State,  might  be  deprived  of  the  advantage 
accruing  under  the  attachment  act."  ^ 

§  117.  The  mode  of  defeating  an  attachment  on 
account  of  defects  in,  or  the  omission  to  make,  an  affi- 
davit, varies  in  different  States.  The  most  usual  mode 
is  by  motion  to  quash  or  dissolve  the  attachment. 
This  motion  is  in  the  nature  of  a  plea  in  abatement, 


^  Wharton  v.  Conger,  9  Smedes  &  Marshall,  510. 

-  Hamilton  v.  Knight,  1  Blackford,  25. 

»  Creagh  v.  Delane,  1  Nott  &  M'Cord,  189. 

[127] 


§  118  AFFIDAVIT   FOR    ATTACHMENT.  [CH.  V. 

aucl,  if  successful,  its  effect  is  precisely  the  same.^  In 
Alabama  and  North  Carolina,  however,  the  only  way 
recognized  for  reaching  such  defects  is  by  plea  in 
abatement.^  Whichever  mode  is  adopted,  it  should  be 
resorted  to  m  limine ;  for  after  the  appearance  by  the 
defendant  and  plea  to  the  action,  it  is  too  late  to  take 
advantage  of  defects  in  the  preliminary  proceedings ; 
they  will  be  considered  as  waived,  unless  peculiar  stat- 
utory provisions  direct  otherwise.^ 

§  118.  In  Maryland,  however,  where,  it  appears, 
garnishees  are  permitted  to  except  to  the  proceed- 
ing's in  the  suit,  at  least  so  flxr  as  to  contest  the 
jurisdiction  of  the  court,  it  has  been  held,  that  a  gar- 
nishee may  avail  himself  of  the  want  of  jurisdiction, 
appearing  on  the  face  of  the  affidavit,  by  demurrer,  or 
after  verdict,  on  a  motion  in  arrest  of  judgment,  or 
after  a  jury  should  be  sworn,  by  a  prayer  for  the  in- 
struction of  the  court ;  or  after  appeal  or  writ  of  error, 
he  may  assign  it  as  error  in  the  appellate  court.'^  And 
in  Kentucky,  it  was  held  that  a  case  not  within  the 
provisions  of  the  act,  could  not,  by  the  pleadings,  be 
rendered  legal.^  And  in  Illinois,  it  was  decided  that 
an  insufficient  affidavit  could  nbt  be  amended,  so  as  to 
sustain  the  proceedings  under  the  attachment.^ 

1  Watson  V.  M'Allister,  7  Martin,  368. 

-  Lowiy  V.  Stowe,  7  Porter,  483;  Jones  v.  Pope,  G  Alabama,  154;  Gar- 
mon  V.  Barringer,  2  Dcvereux  &  Battle,  502. 

'  Garmon  v.  Barringer,  2  Devercux  &  Battle,  502 ;  Stoney  v.  M'Neill, 
Harper,'  15G;  Watson  v.  M'Allister,  7  Martin,  3G8;  Enders  v.  Steamer 
Henry  Clay,  8  Robinson  (La.)  30. 

*  Bruce  v.  Cook,  6  Gill  &  Johnson,  345.  Sed  contra,  Garmon  v.  Bar- 
ringer, 2  Devereux  &  Battle,  502. 

s  Kennedy  v.  Dillon,  1  A.  K.  Marshall,  354. 

«  Clark*!.".  Roberts,  1  Illinois  (Brecse)  222. 

[128] 


CHAPTER    VI. 


OF   ATTACIEMENT   BOXDS. 


§  119.  In  many  of  the  States  it  is  required,  that  a 
plaintiff,  before  obtaining  an  attachment  shall  execute 
a  bond,  with  security,  for  the  indemnification  of  the. de- 
fendant against  damage  by  reason  of  the  attachment. 
The  terms  of  such  instruments  vary,  but  that  is  the 
usual  scope  of  them.  Sometimes,  in  order  to  protect 
defendants  who  do  not  appear  to  the  action,  a  clause  is 
added  in  the  condition,  that  the  plaintiff  shall  refund  to 
the  defendant  any  money  recovered  by  means  of  the 
attachment,  which  was  not  justly  due  to  him. 

§  120.  "Where  the  statute  requires  a  bond  to  be  given 
before  the  attachment  issues,  a  failure  to  give  it  is  fatal 
to  the  suit,  unless  the  law  authorize  the  defect  to  be 
cured ;  and  the  omission  may  be  taken  advantage  of 
by  the  defendant,  either  upon  a  motion  to  dismiss,  or 
in  abatement.-^  Great  strictness  has  been  manifested 
on  this  point,  and  without  doubt  very  properly,  for  if 
the  ofi&cer  "  could  dispense  with  the  requisites  of  the 
law,  for  a  part  of  a  day,  why  might  he  not  for  a  whole 
day,  or  many  days,  and  at  last  the  whole  be  excused 


^  Bank  of  Ala^bama  v.  Fitzpati-ick,  4  Humphreys,  311  ;  Didier  r.  Gallo- 
"wav,  3  Arkansas,  (Pike)  501. 

[129] 


§  122  ATTACHMENT   BONDS.  [CH.  VI. 

by  the  answer  that  the  defendant  was  still  secured,  and 
might  make  the  plaintiff  responsible,  who  might  be 
amply  able  to  discharge  the  damages  recovered,  al- 
though no  bond  was  executed  at  all  ?  "  -^ 

§  121.  Where  the  statute  requires  a  bond  in  a  stated 
penalty,  with  a  specified  condition,  its  requirement  is 
not  met  by  the  execution  of  a  covenant,  by  which  the 
plaintiff  and  his  security  promise  to  pay  to  the  defend- 
ant the  amount  of  the  penalty  stated  in  the  statute,  or 
all  damages  and  costs  he  may  sustain  by  reason  of  the 
issue  of  the  attachment.^  And  if  such  an  instrument 
be  declared  on  as  a  bond  with  a  condition,  and  a  breach 
thereof  assigned,  when  it  is  produced  on  the  trial  the 
variance  will  be  fatal.^ 

§  122.  In  Mississippi  the  statute  declares  that  an 
attachment  issued  without  bond  is  void,  and  the  courts 
of  that  State  have  carried  out  the  law  rigidly ;  holding 
not  only  that  the  attachment  is  absolutely  void,"^  but 
that  the  want  of  a  sufficient  bond  cannot  be  cured  by 
filing  a  proper  one  after  the  suit  is  brought ;  ^  that  the 
absence  of  a  bond  is  not  remedied  by  the  appearance 
of  the  defendant  and  his  joleading  to  the  action ; "  that 
a  judgment  against  a  garnishee  who  has  answered  un- 
der an  attachment  issued  without  bond  is  void,"  and  is 


^  IMiLi.s,  J.,  in  Hucheson  v.  Koss,  2  A.  K.  Marshall,  349. 

-  Homan  v.  BrinckerhofT,  1  Denio,  184. 

^  Ptwhcfeller  r.  lloysradt,  2  IIIU,  N.  Y.  616. 

■*  Ford  V.  Iliinl,  4  Smedcs  &  IMaishall,  683. 

'^  Houston  V.  Belcher,  12  Smedcs  &  Marshall,  514. 

•  Tyson  v.  Ilomcr,  2  Howard,  669. 

♦Tord  V.  Woodward,  2  Smedcs  &  Marshall,  260. 

[130] 


cpi.  yl]  attachment  bonds.  §  125 

no  bar  to  a  subsequent  action  against  him  by  the  at- 
tachment defendant  for  the  same  debt.^ 

§  123.  In  South  Carolina,  however,  so  great  strict- 
ness does'  not  prevail  There  the  statute  decLires  the 
attachment  void  when  issued  without  bond,  but  the 
courts  have  construed  the  law  to  mean  voidable  only, 
and  held  that  the  attachment  is  good  until  declared 
void  on  pleading.^  The  same  rule  exists  in  Kentucky, 
nnder  a  statute  declaring  that  an  attachment  issued 
without  bond,  or  where  no  bond  is  returned,  is  illegal 
and  void,  and  shall  be  dismissed.^ 

§  124.  The  bond  must  be  actually  executed  and  deliv- 
ered before  the  writ  issues.  It  will  not  answer  for  the 
party  to  prepare  that  w^iich  may  be  made  into  the  re- 
quired instrument,  and  leave  it  incomplete.  Therefore, 
wdiere  it  appeared  that  the  plaintiff,  before  the  writ 
issued,  filed  with  the  clerk  a  half  sheet  of  paper,  upon 
which  he  and  another  person  had  signed  their  names, 
but  that  the  paper  was  otherwise  blank,  it  was  decided 
that,  as  the  ceremonies  necessary  to  a  bond  consist  of 
writing,  (on  paper  or  parchment,)  sealing,  and  delivery, 
none  of  which  existed  in  this  case,  there  w^as  no  bond, 
and  the  writ  was  quashed.* 

§  125.  If  the  bond  be  actually  executed,  according 
to  the  statutory  requirement,  but  before  it  is  returned 


1  Ford  V.  Hurd,  4  Smedes  &  Marshall,  G83. 

2  Camberford  v.  Hall,  3  M'Cord,  345. 

3  Banta  v.  Reynolds,  3  B.  Monroe,  80. 
*  Boyd  r.  Boyd,  2  Nott  &  M'Cord,  125. 


[131] 


§  128  ATTACIDIENT    BONDS.  [CH.  VI. 

into  court  is  accidentally  destroyed,  the  failure  to  re- 
turn it  will  not  be  a  cause  for  quashing  the  attachment, 
though  the  statute  require  it  to  be  returned.^ 

§  126.  If  it  appear  from  the  recitals  in  the  bond  that 
it  was  not  executed  until  after  the  writ  issued,  it  wall 
be  fatal  to  the  attachment.  Therefore,  where  the  bond 
and  attachment  bore  date  on  the  same  day,  and  the 
former  recited  that  the  plaintiff  had  on  that  day  ob- 
tained the  attachment,  the  attachment  was  quashed.^ 

§  127.  Where,  however,  the  condition  of  the  bond 
required  the  plaintiff  to  prosecute  to  effect  an  attach- 
ment "  granted,"  and  the  bond  and  the  attachment  were 
of  the  same  date,  the  court  considered  it  unnecessary 
to  set  forth  in  the  bond  that  it  was  taken  before  grant- 
ing the  writ,  and  that  it  w^ould  be  presumed  the  law 
had  been  complied  with.  "  The  object  of  the  law,"  said 
the  court,  "  was  to  prevent  an  attachment  from  being 
issued  without  giving  the  defendant  the  security  afforded 
by  the  bond,  and  the  least  possible  division  of  time  is  a 
sufficient  priority.  If  the  law  has  been  substantially 
fulfilled,  the  court  will  not  permit  the  object  to  be  de- 
feated, because  the  phraseology  of  some  part  of  the 
proceedings  may  not  be  critically  correct."^ 

§  128.  The  recital  of  a  bond  indicating  that  the  at- 
tachment had   been  previously  obtained,  will  not  be 


^  Wheeler  v.  Slavens,  13  Smedcs  &  Marshall,  G23. 

*  Ilucheson  v.  Ross,  2  A.  K.  Marshall,  319  ;  Hoot  v.  Monroe,  5  Blackford, 
5D4.  ^* 

=  McKenzie  v.  Buchan,  1  Nott  &  M'Corel,  205. 

[132] 


CH.  YI.]  ATTACmiEXT   BONDS.  §  131 

sufficient  to  cjimsli  the  writ,  if  it  appear  on  inspection 
of  the  record  that  the  writ  was  in  fact  subsequently 
issued.  This,  however,  could  not  be  shown  by  parol 
evidence.^ 

§  129.  The  sufficiency  of  the  bond  to  sustain  the 
attachment  may  be  questioned,  either  as  to  its  terms, 
parties,  or  amount.  If  there  be  a  bond,  but  not  such 
as  the  law  requires,  it  will  be  the  same  as  if  there  were 
no  bond,  unless  an  amendment  of  it  be  authorized  by 
statute.^  A  substantial  compliance  with  the  statute, 
however,  seems  to  be  in  general  sufficient. 

§  130.  As  to  the  terms  of  the  lond.  "When  a  statute  in 
one  clause  provides  what  shall  be  the  condition  of  the 
bond,  and  in  another,  sets  forth  the  form  of  the  condi- 
tion, the  proper  course  is  to  follow  the  form,  without 
reference  to  whether  its  terms  coincide  with  the  lan- 
guage of  the  statute  elsewhere.'^  Indeed  it  has  been 
decided  that  if  the  bond  follow  the  lang-uag-e  of  the 
statute  instead  of  the  form  prescribed,  when  they  are 
variant  from  each  other,  it  will  be  void.* 

§  131.  A  misrecital  in  a  bond  of  the  term  of  the 
court  to  which  the  attachment  is  returnable  does  not 
vitiate  it.     The  affidavit  and  the  writ  control  the  terms 


^  Summers  v.  Glancey,  3  Blackford,  361. 

-  Bank  of  Alabama  v.  Fitzpatrick,  4  Humphreys,  311 ;  Houston  v.  Belclier, 
12  Smedes  &  Marshall,  514. 

3  Love  V.  Fairfield,  10  Illinois  (5  Gilman)  303. 

*  Mflntyre  v.  White,  5  Howard  (i\li.)  298;  Amos  v.  AUnutt,  2  Smedes- & 
Marshall,  215. 

12  [133] 


§133  ATTACHMENT    BONDS.  [CH.  VI. 

of  the  instrument/  But  where  the  bond  recited  the 
time  when  the  court  was  to  be  held,  as  "  the  first  Mon- 
day in  June/'  without  designating  it  as  the  next  comity 
court,  it  was  considered  defective,  but  amendable.^  And 
so,  where  the  bond  was  dated  on  the  4th  day  of  Jan- 
uary, 1836,  and  recited  the  attachment  as  returnable 
"  to  the  county  court  to  be  held  on  the  third  Monday 
of  January,  instant,"  while  the  attachment  bore  date 
the  4th  of  January,  1838,  the  bond  was  held  to  be  de- 
fective.^ 

§  132.  While  any  substantial  departure  from  a  pre- 
scribed form,  or  omission  from  the  instrument  of  terms 
required  by  the  statute,  will  be  fatal  to  the  action,  un- 
less remediable  by  amendment,  the  addition  of  terms 
not  required  will  not  have  that  effect.  Thus,  where  a 
bond  contained  all  the  requisite  conditions,  with  the 
further  one,  "that  the  plaintiff  shall  prosecute  his 
attachment  with  effect  at  the  court  to  which  it  is  re- 
turnable," it  was  held,  that  this  did  not  authorize  the 
attachment  to  be  dismissed.'^ 

§  133.  As  to  the  'parties  to  the  hond.  Under  a  statute 
requiring  a  bond  to  be  taken  of"  the  party  for  whom 
the  attachment  issued,"  it  was  considered,  in  a  suit  by  a 
mercantile  firm,  that  a  bond  entered  into  by  one  of  the 
firm  in  his  own  name  was  sufficient,  where  it  appeared 
in  the  instrument  that  he  executed  it  as  one  of  the 


1  Houston  r.  Belcher,  12  Smedes  &  Marshall,  514. 

2  P.  &  M.  Bank  of  Mobile  v.  Andrews,  8  Porter,  404. 
^  Lowry  v.  Stowe,  7  Porter,  483. 

*  Kahn  v.  Herman,  3  Georgia,  2C6. 


CH.  TI.]  ATTACHMENT    BONDS.  §  135 

firm,  and  sufficiently  described  the  suit  as  being  by, 
and  for  the  benefit  of  the  firra.^  But  where  the  bond 
recited  that  the  individual  partner  had  sued  out  the 
attachment,  and  was  conditioned  that  if  he  should  be 
cast  in  the  suit,  he  should  pay  all  costs  and  damages 
recovered  against  Mm  for  suing  out  the  writ,  it  was  de- 
cided that  the  bond  was  not  in  compliance  with  the 
statute,  and  the  attachment  was  therefore  quashed.^ 

§  134.  Though  the  plaintiff  is  usually  required  to 
execute  the  bond,  yet  as  that  might  often  be  impracti- 
cable, it  is  generally  provided  that  it  may  be  done  by 
his  agent,  attorney,  or  other  person.  In  such  cases,  he 
who  assumes  to  represent  the  plaintiff,  may,  without  a 
povrer  of  attorney,  sign  the  bond  in  his  own  name, 
either  describing  himself  as  agent  or  not,  at  his  discre- 
tion.^ Of  course,  in  such  cases,  the  agent  is  responsible 
under  the  bond,  and  not  the  plaintiff. 

§  135.  Where  the  bond  purports  to  be  the  act  of  the 
plaintiff,  by  an  attorney  in  fact,  the  authority  of  the 
attorney  will  be  presumed,  at  least  on  the  hearing  of  a 
motion  to  quash  the  writ  on  account  of  the  insufficiency 
of  the  bond.  If  it  is  intended  to  question  the  authority, 
it  must  be  done  by  plea  to  that  effect.*  For  the  agent's 
authority  is  a  matter  of  evidence  aliunde,  and  forms  no 
part  of  the  bond  ;  and  on  a  motion  to  quash  or  dismiss. 


1  Kyle  V.  Connelly,  3  Leigh,  719. 

2  Jones  V.  Anderson,  7  Leigh,  308. 

^  Dillon  V.  W^atkins,  2  Speers,  445  ;  Frost  r.  Cook,  7  Howard  (Mi.)  357  ; 
Page  V.  Ford,  2  Smedes  &  Marshall,  26G ;  Walbridge  v.  Spalding,  1  Doug- 
lass, 451. 

*  Alford  r.  Johnson,  9  Porter,  320. 

[  135  ] 


§139  ATTACHMENT    BONDS.  [CH.  VI. 

the  court  will  not-  inquire  into  the  fact  of  agency,  but 
will  presume  it.  The  utmost  extent  to  which  the  court 
would  go  in  such  a  case,  would  be  to  rule  the  party  to 
produce  the  power  of  attorney  under  which  he  acted, 
within  a  reasonable  time.^  And  where  the  law  re- 
quired that  the  securities  in  the  bond  should  be  resi- 
dents of  the  State,  it  was  considered  unnecessary  to  be 
stated  in  the  instrument  that  they  were  so,  and  the  fact 
would  be  presumed.^ 

§  136.  As  to  the  amount  of  the  bond  This  is  in  all 
cases  regulated  by  statute  ;  and  the  importance  of  cor- 
rectness in  this  respect  is  so  manifest,  and  the  means  of 
exactness  so  simple,  that  few  questions  have  arisen  in 
reference  to  it. 

§  137.  It  is  no  objection  to  proceedings  in  attach- 
ment that  the  bond  is  in  a  greater  sum  than  is  required 
by  law.^ 

§  138.  In  South  Carolina,  where  the  statute  required 
the  bond  to  be  in  double  the  amount  sued  for,  it  was 
held  that  the  damages  laid  in  the  writ  was  the  amount 
sued  for,  and  the  criterion  of  the  amount  of  the  bond, 
though  the  retil  claim  was  much  less.* 

§  139.   In  Louisiana,  where  under  their  system  of 


1  Lindner  v.  Aaron,  5  Howard  (Mi.)  581  ;  Spear  v.  King,  6  Smedes  & 
Marshall,  276  ;  Jackson  v.  Stanley,  2  Alabama,  32G.  * 

-  Jackson  v.  Stanley,  2  Alabama,  326. 

«  Fellows  V.  Miller,  8  Blackford,  231. 

*  Younp  V.  Grey,  Harper,  38.  See  Callcnder  v.  Duncan,  2  Bailey,  454 ; 
Brown  V.  Whitcford,  4  Richardson,  327. 

[13G] 


CH.  YI.]  ATTACPBIENT    BONDS.  §  14:0 

practice,  the  actual  sum  claimed  by  the  plaintiff  must 
be  stated  in  the  petition  on  which  the  suit  is  founded, 
the  following  case  arose,  under  a  law  which  required 
the  bond  to  be  "  in  a  sum  exceeding  by  one  half  that 
claimed  by  the  plaintiff."  The  plaintiff,  in  order  to  ob- 
tain the  attachment,  swore  that  the  sum  of  $2,350, 
besides  interest,  damages,  &c.,  was  due  to  him.  After- 
wards, on  filing  his  petition,  setting  forth  his  cause  of 
action,  he  claimed  a  greater  amount,  which  resulted 
from  an  allegation  of  damages,  and  a  fixation  of  the 
rate  of  interest ;  and  it  was  held,  that  his  claiming  in 
his  petition  a  greater  amount  than  in  his  affidavit,  did 
not  invalidate  the  attachment,  and  that  the  bond  being 
in  a  larger  sum  by  one  half  than  that  named  in  the 
affidavit,  it  was  sufficient,  though  it  was  not  in  a  larger 
sum  by  one  half  than  that  claimed  in  the  petition.^ 

§  140.  But  where  the  plaintiff  claimed  in  his  afiSda- 
vit  a  certain  sum,  with  interest  at  a  designated  rate, 
from  a  given  date,  and  the  bond  did  not  exceed,  by 
one  half,  the  amount  due,  principal  and  interest,  it  was 
held  to  be  fatal  to  the  attachment.  This  case  was  dis- 
tinguished from  that  just  cited,  "  because  in  that  case 
the  affidavit  stated  a  certain  sum  as  due, '  besides  inter- 
est, damages,  etc'  The  bond  was  properly  proportioned 
to  the  sum  named,  and  it  was  considered  that  the  words 
'  interest,  damages,  etc'  were  to  be  disregarded,  because 
neither  the  rate  of  interest,  nor  the  time  for  w^hich  it 
ran  was  stated."  ^     But  afterwards  the  same  court,  in 


1  Pope  I'.  Hunter,  13  Louisiana,  306  ;  Jackson  v.  Warwick,  17  Ibid.  436. 
-  Planters  Bank  v.  Byrne,  3  Louisiana  Annual,  687  ;  Graham  v.  Burck- 
halter,  2  Louisiana  Annual,  415. 

12  *  [  137  ] 


§  142  ATTACHMENT    BONDS.  [ciI.  VI. 

again  affirming  their  first  position,  that  the  claiming  in 
the  petition  of  a  greater  sum  than  that  sworn  to,  was 
not  a  cause  for  dissolving  the  attachment,  yet  held  that 
the  judgment  could  not  be  given  with  privilege  for  a 
greater  amount  than  was  named  in  the  affidavit,  nor 
would  the  plaintiff  be  justified  in  holding  under  a  levy, 
a  greater  amount  of  property  than  was  necessary  to 
cover  that  sum  and  costs.^  And  this  defect  in  the 
amount  of  the  bond  cannot  be  cured  by  filing  an  addi- 
tional bond,  sufficient  in  amount  to  cover  the  additional 
amount  claimed.^ 

§  141.  Where  the  law  required  the  bond  to  be  in 
double  the  sum  sivorn  to,  a  misrecital  in  the  bond  of  the 
amount  sworn  to,  w^hereby  it  appeared  that  the  bond 
was  not  in  double  that  sum,  but  less,  was  held  not  to 
vitiate  the  bond,  as  the  affidavit  controlled,  in  ascertain- 
ing the  true  sum.^ 

§  142.  In  all  these  cases  of  defective  or  insufficient 
bond,  the  defendant  is  usually  the  only  party  who  can 
take  advantage  of  the  defect.  Therefore,  a  subsequent 
attaching  creditor  cannot  be  allowed  to  become  a  party 
to  the  suit,  so  as  to  take  advantage  of  a  defect  in  the 
bond,  in  order  that  his  attachment  may  take  the  prop- 
erty.* 

^  Fellows  V.  Dickens,  5  Louisiana  Annual,  131. 

^  Graham  v.  Burckhalter,  2  Louisiana  Annual;  415. 

'  liawrence  v.  Feathcrston,  10  Smedcs  &  Marshall,  345. 

*  Camberford  v.  Hall,  3  M'Cord,  345;  INI'Kenzie  v.  Buchan,  1  Nott  & 
IM'Cord,  205;  Wigfall  v.  Byne,  1  Eiehardson,  412;  Van  Arsdale  v.  Kruin, 
fl  Mssouri,  397. 

[13^] 


CH.  YL]  ATTACmiENT    BONDS.  §  144 

§  143.  As  to  the  time  when  advantage  should  be 
taken  by  the  defendant  of  defects  m  the  bond,  for  the 
purpose  of  defeating  the  attachment,  the  rule  hiid  down 
as  to  affidavits,  may  be  considered  appUcable,  that  the 
exception  must  be  taken  in  ■limine}  In  Mississippi,  as 
we  have  seen,  the  defect  is  not  cured  by  appearance 
and  plea ;  but  it  is  nowhere  else  so  held,  and  in  South 
Carolina  the  reverse  is  the  rule.^  It  follows  that  the 
objection  comes  altogether  too  late  in  an  appellate 
court,  particularly  when  it  was  not  made  in  the  court 
below.^ 

§  144.  It  is  sometimes  allowed  to  a  plaintiff  to  amend 
an  insufficient  bond,  upon  terms.  In  Missouri,  under  a 
statute  wliich  authorized  the  court  to  "  order  another 
bond  to  be  given,"  where  that  given  "  is  insufficient,  or 
any  security  therein  has  died,  or  removed  from  the 
State,  or  has  become,  or  is  likely  to  become  insolvent," 
a  bond  was  given  which  was  defective  in  the  omission 
of  a  material  clause  in  the  condition  required  by  the 
statute,  and  leave  was  given  the  plaintiff  to  file  an 
amended  bond.  It  was  contended  that  such  an  amend- 
ment was  not  contemplated  by  the  statute,  but  that  the 
insufficiency  must  be  for  the  reason,  either,  that  the 
security  had  died,  or  removed  from  the  State,  or  had 
become,  or  was  likely  to  become,  insolvent ;  but  it  was 
held,  that  if  such  was  the  intention  of  the  legislature, 


^  Garmon  v.  Barringer,  2  Devereux  &  Battle,  502  ;  Stoney  i'.  INI'Neill, 
Harper,  156  ;  Watson  v.  M'Allister,  7  Martin,  368 ;  Enders  v.  Steamer 
Henry  Clay,  8  Robinson  (La.)  30. 

*  Young  V.  Grey,  Harper,  38. 

^  Conklin  v.  Harris,  5  Alabama,  213;  Fleming  v.  Burge,  6  Ibid.  373; 
Bretney  v.  Jones,  1  G.  Greene,  366. 

[139] 


§  147  ATTACHMENT    BONDS.  [CH.  VI. 

the  ^vords  —  "that  the  bond  given  by  the  iDlaintifF 
is  insufficient "  —  might  as  well  have  been  omitted  ; 
and  that  the  court  rightly  permitted  the  bond  to  be 
amended.^ 

§  145.  Under  a  statute  which  provided  that  "the 
plaintiff,  before  or  during  the  trial,  should  be  permitted 
to  amend  any  defects  of  form  in  the  original  papers,"  it 
w^as  held,  that  a  defective  bond  might  be  amended  by 
the  substitution  of  a  new  and  perfect  one ;  ^  and  that  a 
defect  in  the  bond  would  not  be  a  sufficient  cause  for 
quashing  proceedings,  unless  an  opportunity  were  given 
to  the  plaintiff*  to  execute  a  perfect  bond,  and  he  de- 
clined doing  so.^ 

§  146.  "Where  this  right  to  amend  is  given,  it  makes 
no  difference  whether  the  bond  be  void  or  only  defec- 
tive :  in  either  case  it  is  the  duty  of  the  court  to  permit 
the  plaintiff"  to  substitute  a  sufficient  bond.* 

§  147.  The  errors  and  defects  of  attachment  bonds, 
however  they  might  affect  the  attachment  suit,  do  not 
interfere  with  the  liability  of  the  obligors  to  the  defend- 
ant. Upon  them  the  obligation  continues,  though  the 
attachment  might  have  been  quashed  because  of  the 
insufifiiciency  of  the  instrument,  either  as  to  amount, 
terms,  or  the  time  of  its  execution.  Thus,  though  a 
bond  be  not  taken  until  after  the  writ  is  issued,  which 

^  Van  Arsdaje  v.  Krum.  9  Missouri,  397. 
^  Lowry  V.  Stowe,  7  Porter,  483. 

2  P.  &  M.  Bank  v.  Andrews,  8  Porter,  404  ;  Lowe  v.  Derrick,  9  Ibid.  415 ; 
Tevis  V.  Hughes,  10  Missouri,  380. 
*  Jackson  v.  St^ley,  2  Alabama,  326. 

[140] 


en.  YI.]  ATTACHMENT    BONDS.  §  149 

we  have  seen  is  a  proper  ground  for  quashing  the  writ, 
the  obhgors  cannot  set  up  that  fact  as  a  defence  to  an 
action  on  the  instrument.^  And  the  omission  from  it 
of  a  part  of  the  condition  required  by  the  statute,  does 
not  invalidate  it  as  against  the  obhgors,  but  to  the 
extent  it  goes  it  is  vahd.^ 

§  148.  Where  a  bond  is  executed  without  being  re- 
quired or  authorized  by  any  statute,  the  makers  cannot 
defend  against  it  on  that  ground :  it  is  good  as  a  com- 
mon law  bond.  This  was  ruled  in  an  action  on  a  bond 
given  by  a  plaintiff  on  commencing  a  suit  by  attach- 
ment in  a  circuit  court  of  the  United  States,  and  the 
bond  was  made  to  the  United  States.  No  law  of  the 
United  States  requiring  it,  and  not  being  executed  in 
connection  with  any  business  of,  or  any  duty  of  the 
obligors  to,  the  government,  it  was  contended  that  it 
could  not  be  enforced;  but  the  court  determined 
otherwise.^ 

§  149.  The  bond  is  not  confined,  in  its  obligation,  to 
the  proceedings  in  the  court  in  which  the  attachment 
suit  was  instituted,  but  it  extends  on  to  the  final  de- 
termination of  the  cause.  Where  the  condition  was 
"  to  pay  the  defendant  all  damages  and  costs  which  he 

ay  sustain  by  reason  of  the  issuing  of  the  attachment, 
if  the  plaintiff  fail  to  recover  judgment  thereon,"  the 
plaintiff  recovered  judgment  in  the  court  in  which  the 
suit  was  brought,  and  the  defendant  appealed  therefrom, 

^  Sumpter  v.  Wilson,  Smith,  65. 

2  Hlbbs  V.  Blair,  14  Penn.  State,  413;  The  State  v.  Berry,  12  Missouri, 
376. 
*  Barnes  v.  Webster,  16  lilissouri,  258. 

■      [i«] 


\ 


§  152  ATTACHMENT    BONDS.  [CH.  VI. 

and  in  the  appellate  court  the  judgment  was  reversed. 
When  sued  on  the  bond,  the  obligor  urged  that  the 
condition  was  not  broken,  inasmuch  as  he  had  recovered 
judgment  in  the  attachment  suit ;  but  this  view  was  not 
sustained ;  the  court  considering  that  the  bond  w^as  not 
restricted  to  the  court  in  which  the  attachment  was 
obtained,  but  extended  to  the  final  result  of  the  case.^ 

§  150.  Approaching  now  the  subject  of  actions  on 
these  bonds,  an  inquiry  arises,  important  to  be  consid- 
ered. What  is  the  intention  of  legislatures  in  requir- 
ing such  bonds  to  be  given  ?  Is  it  intended  that  they 
shall  supersede  the  common  law  action  for  malicious 
prosecution  ?  If  so,  the  defendant  in  the  attachment 
can  maintain  no  action,  save  on  the  bond.  If  not,  then 
the  bond  must  be  intended,  either  as  a  mere  security 
for  what  may  be  recovered  in  an  action  for  malicious 
prosecution,  or  as  authorizing  a  recovery  of  damages 
for  a  wrongful  attachment  on  other  principles  than 
those  established  by  the  common  law. 

§  151.  On  the  first  point,  it  has  been  expressly  de- 
cided, that  the  remedy  of  the  attachment  debtor  for  a 
wrongful  attachment,  by  an  action  for  malicious  prose- 
cution, is  not  affected  by  the  execution  of  the  bond, 
but  that  that  remedy  still  subsists.^ 

§  152.  On  the  second  point,  it  seems  incontrovertible 
that  the  bond  is  not  intended  as  a  mere  security  for  the 

^  Ball  V.  Gardner,  21  Wendell,  270. 

''Sanders  v.  Hughes,  2  Brevard,  495;  Donnell  v.  Jones,  13  Alabama, 
490;  Smith  r.  Story,  4  Humphreys,  169;  Pettit  v.  Mercer,  8  B.Monroe,  51. 
See  also  Senecal  K' Smith,  9  llobinson  (La.)  418. 

[142] 


CH.  YI.]  ATTACIDIEXT    BONDS.  §    153 

payment  of  what  may  be  recovered  in  an  action  for 
malicious  prosecution ;  for  if  so  intended,  it  should  be 
conditioned  for  the  payment  of  the  damages  which  the 
defendant  may  sustain  by  reason  of  the  attachment 
having  been  sued  out  maliciously  and  without  probable 
cause  ;  but  such  are  never  the  terms  used.  Again,  the 
penalty  is  always  in  a  prescribed  sum,  which  in  many 
cases  would  be  much  less  than  the  amount  that  might 
be  recovered  in  an  action  for  malicions  prosecution. 
And  again,  if  so  intended,  no  action  could  properly  be 
maintained  upon  it,  until  the  damages  had  been  liqui- 
dated and  determined  in  an  action  for  malicious  prose- 
cution; whereas,  it  is  a  constant  practice  to  sue  in  the 
first  instance  on  the  bond,  and  has  been  expressly 
decided  to  be  admissible.^  Hence  we  apprehend  that 
the  bond  is  not  intended  merely  as  a  security  for  dam- 
ages recovered  in  an  action  for  malicious  prosecution ; 
and  that  in  requiring  such  bonds  it  is  intended  to 
authorize  the  recovery  of  other  than  such  damages, 
and  that  a  recovery  on  them  is  not  restricted  to  that 
which  may  be  had  on  the  principles  of  the  common 
law  governing  actions  for  malicious  prosecution. 

§  153.  This  subject  was  discussed  by  the  Court  of 
Appeals  of  Kentucky,  in  a  case  where  the  condition  of 
the  bond  was  "  for  the  payment  of  all  costs  and  dam- 
ages sustained  by  the  defendant  by  reason  of  the 
wrongful  issuing  of  the  order  for  the  attachment."  In 
the  course  of  the  delivery  of  their  opinion,  the  court 
express  themselves  in  the  following  terms :  "  The  extent 


^  Herndon  v.  Forney,  4  Alabama,  243  ;  Dickinson  v.  M'Graw,  4  Randolph, 
158. 

[W3] 


^153  ATTACHMENT    BONDS.  [CH.  VI. 

to  which  the  plaintiff  has  a  right  to  recover  in  a  suit  of 
this  kind,  or  in  other  words,  his  right  to  damages  com- 
mensurate to  the  injury  sustained  by  him  in  conse- 
quence of  the  extraordinary  proceeding  by  attachment, 
forms  the  chief  subject  of  inquiry  in  this  case.  Has 
he  a  rio-ht  to  show  that  his  credit  has  been  seriously 
affected,  his  sensibilities  wounded,  and  his  business  ope- 
rations materially  deranged,  in  consequence  of  the 
attachment  having  been  sued  out ;  and  to  rely  upon 
these  matters  to  enhance  the  amount  of  damages?  Or 
is  he  to  be  confined  to  the  costs  and  expenses  incurred 
by  him,  and  such  damages  as  he  may  have  sustained  by 
a  deprivation  of  the  use  of  his  property,  or  any  injury 
thereto,  or  loss  or  destruction  thereof,  by  the  act  of  the 
plaintiff  in  suing  out  the  attachment  ? 

"  The  defendant  has  a  right  to  bring  an  action  on  the 
case  against  the  plaintiff  for  a  vexatious  and  malicious 
;  proceeding  of  this  kind.     In  such  a  suit,  damages  may 
i  be  claimed  for  every  injury  to  credit,  business,  or  feel- 
1  ings.3  But  to  sustain  such  a  suit,  and  enable  the  plain- 
tiff to  succeed,  malice  upon  the  part  of  the  defendant, 
and  the  want  of  probable  cause,  are  both  requisite.     In 
a  suit  on  the  bond,  the  plaintiff  is  not  bound  to  show 
malice,  nor  can  the  defendant  rely,  by  way  of  defence, 
upon   probable    cause.     It  would    seem,  therefore,  to 
follow,  that  such  injuries  as  he  is  entitled  to  redress  for, 
only  where  malice  exists,  and  probable  cause  is  want- 
ing, could  not,  with  any  propriety,  be   estimated  or 
taken  into  consideration  in  a  suit  on  the   bond.     To 
allow  it  to  be  done,  would  be  inconsistent  with  all  the 
analogies  of  the   law,  which  should  not  be   violated, 
unless  it  be  imperiously  required  by  the  terms  of  the 
bond,  or  the  presumed  intention  of  the  legislature. 
[144] 


CH.  VI.]  ATTACmiEXT    BONDS.  §  154 

"If  an  order  has  been  obtained  without  just  cause, 
and  an  attachment  has  been  issued,  and  acted  on  in  pur- 
suance of  the  order,  the  terms  of  the  bond  secure  to  the 
defendant  in  the  attachment  all  costs  and  damages  that 
he  has  sustained  in  consequence  thereof  The  condi- 
tion of  the  bond  is  satisfied,  and  its  terms  substantially 
complied  with,  by  securing  to  him  damages  adequate  to 
the  injury  to  the  property  attached,  and  the  loss  arising 
from  the  deprivation  of  its  use,  together  with  the  actual 
costs  and  expenses  incurred. 

"  It  cannot  be  rationally  presumed  that  the  Legisla- 
ture designed  to  impose  on  the  security  in  the  bond  a 
more  extensive  liability.  The  statute  is  remedial  in 
its  character,  and  should  be  expounded  so  as  to  advance 
the  object  contemplated.  To  impose  an  almost  unlim- 
ited liability  on  the  security  in  the  bond,  sufficient  to 
embrace  every  possible  injury  that  the  defendant  might 
sustain,  would  be  in  effect  to  defeat  in  a  great  measure 
the  object  of  the  statute,  by  rendering  it  difficult,  if 
not  impracticable,  for  the  plaintiff  to  execute  the  nec- 
essary bond."  ^ 

§  154.  The  introduction  of  attachment  bonds  into 
the  practice  of  the  courts  in  Alabama,  led  to  a  change 
in  the  common  law  principles  which  would  otherwise 
have  regulated  the  action  for  a  wrongful  attachment. 
The  first  reported  decision  on  this  subject  in  that  State 
was  made  in  an  action  on  the  case  ;  in  which  the  declara- 
tion charged  that  the  defendant,  without  any  just  or 
probable  cause,  procured  an  attachment  to  be  issued 
and  levied  on  the  plaintiff"'s  property.     This,  as  a  dec- 

1  Pcttit  V.  Mercer,  8  B.  Monroe,  51. 

13  [145] 


§  154  ATTACHMENT    BONDS.  [CH.  VI. 

laration  for  malicious  prosecution,  was  at  the  common 
law  manifestly  insufficient.  Plea,  not  guilty,  and  issue. 
On  the  trial,  the  Circuit  Court  charged  the  jury  that  in 
this  action  it  was  essential  to  prove  malice.  Upon 
exception  to  this  charge  the  case  went  to  the  Supreme 
Court,  where  the  decision  of  the  Circuit  Court  was  over- 
ruled; the  judgment  of  the  Supreme  Court  manifestly 
resting  on  the  existence  of  the  law  requiring  a  bond  to 
be  given,  though  the  action  was  not  on  the  bond. 
That  law  was  considered  as  changing  the  common  law 
rule  in  such  cases. 

"In   actions   for  a  malicious  prosecution,"   said  the 
court,  "  the   malice   of  defendant  must  be   proved,  or 
implied  from  the  circumstances,  to  entitle  the  plaintiff 
to  recover.     Is  the  action  for  wrongfully  suing  out  an 
attachment  to  be  regulated  by  the  same   principles? 
The  original  attachment  is  a  process  created  by  statute, 
authorized  only  in  particular  cases,  its  abuse  carefully 
guarded  against,  and  the  remedy  pursued  in  this  way 
always  liable  to  strict  construction.     By  our  statute 
regulating  it,  the  plaintiff  in  an  action  so  commenced 
is  required  to  give  bond  and  security  conditioned  to 
satisfy  the  defendant  all  costs  and  damages  '  awarded 
for  wrongfully  suing  out,'  (Acts  of  1807,)  or  all  such 
damages  as  he  may  sustain  by  the  wrongful  or  vexa- 
tious suing  out  of  such  attachment  (Act  of  1814).     In 
providing  this  extraordinary  remedy  for  the  plaintiff", 
the  legislature  intended  also  to  protect  the  rights  of 
defen^lants.     It  was  obvious  that  the  taking  and  deten- 
tion of  his  property  might  be  ruinous  to  the  owner, 
although  there  was  no  sort  of  malice  or  corrupt  motive 
in  the  party  at  whose  suit  it  might  be  attached.     Why 
should  the  condition  prescribed  for  the  bond  be  ^  to  pay 
[14C] 


CH.  TI.]  ATTACHMENT    BONDS.  §  156 

all  damages  sustained  by  the  urongful  or  vexatious  suing  ( 
out;  if  it  had  been  the  intention  of  the  legislature  that  / 
no  damages  should  be  recovered  unless  for  the  mali-  N^ 
cious  suino-  out  ?     If  such  had  been  their  intention,   { 
would  not  the  term  malicious  readily  have   occurred,    \ 
and  been  used  instead  of  those  employed  ?     A  verbal    / 
criticism  can  hardly  be  necessary  to  prove  that  the 
party  whose  property  is  attached  may  find  the  proceed-   \ 
ing  wrongful  and  vexatious,  that  the  suing  it  out  may   i 
be   ruinous  to  his    credit    and    circumstances,  though  \ 
obtained  without  the  least  mahce  towards  him.     If  the     I 
plaintiff,  under  color  of  the  process,  do,  or  procure  to    | 
be  done,  what  the   law  has  not  authorized,  and  the     \ 
defendant  is  thereby  injured,  it  seems  clear  that  he  is,    ( 
in  such  case,  as  much  as  in  any  other,  entitled  to  redress    j 
from  the  party  whose  illegal  or  ^  wrongful '  act  has  oc-    j 
casioned  the  injury,  although  it  may  have  been  done   j 
without  malice."  ^ 

§  155.  The  next  case  was  also  an  action  on  the  case,  \ 
for  suing  out  an  attachment  without  any  reasonable  or  ' 
probable  cause,  but  for  the  purpose  of  vexing  and  ha- 
rassing the  plaintiff.  The  Supreme  Court  again  held 
that  the  expression  of  the  legislative  will,  in  designating  \ 
the  terms  of  the  bond,  indicated  that  the  mere  wrong-  , 
ful  recourse  to  this  process  was  a  sufiicient  cause  of  i 
action ;  and  that  malice  was  important  only  in  connec-  \ 
tion  with  the  question  of  damages.^  ' 

§  156.   The  same  court  held  that  actions  on  attach-  \ 


1  Wilson  V.  Outlaw,  Minor,  367  ;  Kirksey  v.  Jones,  7  Alabama,  622. 

2  Kirksev  r.  Jones,  7  Alabama,  622. 

[147] 


§  157  ATTACHMENT    BONDS.  [CH.  VI. 

I  ment  bonds  are  governed  in  all  respects  by  the  rule 

'they  had  established  as  applicable  to  actions  on  the 
case,  except  the  recovery,  which  could  not  exceed  the 
penalty  of  the  bond.^    This  rule  was  expressed  in  these 

I  words  :  "  Whenever  an  attachment  is  wrongfully  sued 
out,  and  damage  is  thereby  caused  to  the  defendant  in 
the  suit,  he  is  entitled,  by  force  of  the  statutory  provis- 
ion, to  recover  for  the  actual  injury  sustained.  And  if, 
in  addition  to  its  being  wrongfully  sued  out,  it  is  also 

.  vexatiously,  or  in  other  terms,  maliciously  sued,  then 
the  defendant,  upon  the  principle  which  governs  the 
correlative  action  for  a  malicious  prosecution,  may  re- 

'  cover  damages  as  a  compensation  for  the  vexatious  or 
malicious  act ;  or  in  the  terms  of  the  statute,  such  dam- 
ages as  he  may  be  entitled  to  on  account  of  the  vexa- 
tious suit."^ 

§  157.  In  Louisiana,  the  same  views  as  those  enter- 
tained in  Alabama  have  been  expressed,  as  well  in  ac- 
tions on  attachment  bonds,  as  in  those  which,  as  re- 
ported, do  not  appear  to  be  of  that  character.  There 
the  bond  is  "  for  the  payment  of  such  damages  as  the 
defendant  may  recover,  in  case  it  should  be  decided 
that  the  attachment  was  wrongfully  issued."  While 
the  common  law  principles  governing  actions  for  ma- 
licious prosecution  are  there  fully  recognized  and 
affirmed,^  it  is  held  that  where  no  malice   exists,  the 


1  mil  ,u.  Ruslilng,  4  Alabama,  212  ;  McCullougli'  v.  AValton,  11  Ibid.  405. 

2  Kirksey  v.  Jones,  7  Alabama,  C22.  See  also,  McCuUough  v.  Walton,  11 
Alabama,  492;  Donnell  v.  Jones,  13  Ibid.  490;  Sliarpe  v.  Hunter,  16  Ibid. 
7G5. 

»  Senecal  v.  Smith,  9  Robinson  (La.),  418  ;  Grant  v.  Deuel,  3  Ibid.  17. 

[  148  >■ 


CH.  VI.]  ATTACHMENT   BONDS.  §  160 

actual  damage  sustained  may  be  allowed  :  if  malice  ex- 
ists, vindictive  damages  may  be  recovered.^ 

§  158.  In  Missouri,  where  the  condition  of  the  bond 
Avas  "  for  the  prosecution  of  the  suit  without  delay  and 
■with  effect,  and  the  payment  of  all  damages  which 
should  accrue  to  the  defendant  or  any  garnishee,  in 
consequence  of  the  attachment,"  the  principles  of  the 
common  law  in  regard  to  actions  for  malicious  prosecu- 
tion have  not  been  applied  to  actions  on  these  bonds, 
but  on  the  contrary  the  recovery  of  actual  damages 
was  allowed  in  a  case  presenting  no  ingredient  of  mal- 
ice.^    And  so  in  New  York.^ 

§  159.  In  Tennessee,  however,  where  the  bond  is 
conditioned  "for  satisfying  all  costs  which  shall  be 
awarded  to  the  defendant,  in  case  the  plaintiff  shall  be 
cast  in  the  suit,  and  also  all  damages  which  shall  be  re- 
covered against  the  plaintiff  in  any  suit  which  may  -be 
brought  against  him,  for  wrongfully  suing  out  the  at- 
tachment," it  was  decided,  in  an  action  on  the  case  for 
a  wrongful  attachment,  that  the  principles  of  the  com- 
mon law  remained  unchanged,* 

§  160.   From  this  summary  of  the  views  of  different^ 
courts  on  this  subject,  it  is  apparent  that  the  execution 


'  Cox  V.  Robinson,  2  KoLInson  (La.),  313 ;  Offutt  v.  Edwards,  9  Ibid.  90 ; 
Horn  V.  Bayard,  11  Ibid.  259;  Littlejohn  t'.  Wilcox,  2  Louisiana  Annual, 
620. 

^  Hayden  v.  Sample,  10  IMissouri,  21.5. 

^  Dunning  v.  Humphrey,  21  Wendell,  31;  Winsor  v.  Orcutt,  11  Paige, 
578. 

*  Smith  V.  Storv,  4  Humphreys,  169. 

13===  [149] 


§  162  ATTACHMENT    BONDS.  [ciI.  VI. 

/of  a  Ccautionary  bond  by  an  attachment  plaintiff,  modi- 
fies the  common  Law  rule,  and  gives  the  defendant  re- 
;      course  against  the  plaintifl'  for  a  wrongful  attachment, 

\''  where  there  existed  no  malice  in  suing  it  out.  The 
practical  working  of  this  rule  will  be  presently  exhib- 
ited, in  connection  with  the  question  of  damages. 

§  161.  Debt  is  undoubtedly  the  usual  and  most  proper 
form  of  action  on  attachment  bonds ;  but  it  has  been 
held  that  covenant  will  lie.^  In  assigning  breaches,  it 
is  not  sufficient  merely  to  negative  the  terms  of  the 
condition.  The  declaration  must  show  that  the  attach- 
ment was  wrongfully  sued  out,  and  what  damages  the 
plaintiff  has  sustained.  Therefore,  where  the  condition 
was  that  the  attachment  plaintiff  should  prosecute  his 
attachment  to  effect,  and  pay  and  satisfy  the  defendant 
all  such  costs  and  damages  as  he  might  sustain  by  the 
wrongful  or  vexatious  suing  out  of  such  attachment ; 
and  the  breach  assigned  was  that  the  obligor  did  not 
prosecute  his  attachment  to  effect,  nor  pay  plaintiff  the 
costs,  damages,  &c.,  which  he  sustained  by  the  wrongful 
and  vexatious  suing  out  of  the  attachment,  by  means 
whereof  the  said  bond  became  forfeited,  and  the  de- 
fendant liable  to  pay  the  penalty ;  the  declaration  was 
held  bad  on  demurrer.^ 

§  162.  In  assigning  breaches,  if  the  damages  alleged 
to  have  been  sustained  exceed  the  amount  of  the  pen- 
alty, it  is  proper  to  assign  the  non-payment  of  the  pen- 


1  Hill  V.  Paishing,  4  Alabama,  212. 

*  Flanagan   v.  Gilclirist,  8  Alabama,  G20;  WInsor  v.   Orcult,    11   Taige, 
578  ;  Love  r.  KidWcll,  4  Blackford,  553. 

[150] 


CH.  VI.]  ATTACHMENT    BONDS.  §  1^4 

alty.  Where  the  damages  clahned  do  not  equal  the 
penalty,  the  averment  should  be  that  they  have  not 
been  paid.^ 

§  163.  The  recital  in  the  condition  that  the  plaintiff 
had  issued  a  writ  of  attachment  against  the  defendant, 
estops  the  obligors  from  denying  by  plea  that  the  at- 
tachment was  sued  out,  and  such  a  plea  is  bad  on  gen- 
eral demurrer.^ 

§  164.  Under  what  circumstances  may  the  attachment 
defendant  maintain  an  action  on  the  bond  ?     Does  the  j 
mere  failure  of  the  plaintiff  to  prosecute  his  suit,  work  | 
a  forfeiture  of  the  condition  ?     The  Supreme  Court  of  ^ 
Louisiana  has  gone  very  far  in  giving  recourse  on  the 
bond  in  such  case.     There,  it  will  be  remembered,  the 
obligation  given,  is  "  for  the  payment  of  such  damages 
as  the  defendant  may  recover,  in  case  it  should  be  de- 
cided that  the  attachment  was  ivrongfully  oUained ;"  and 
it  is  held  that  if  a  plaintiff  voluntarily  abandons  his 
attachment,  he  renders  himself  and  his  surety  responsi- 
ble in  damages.     The  same  court,  with  less  apparent  ^ 
reason,  has  gone  fartlier,  and  decided  that,  though  it 
appear  that  the  plaintiff  had,  at  the  commencement  of 
his  suit,  a  sufficient  and  very  probable  cause  of  action, 
and  was  prevented  from  getting  a  judgment  by  some 
technical  objection,  or  irregularity  in  the  proceedings, 
which  could  not  be  foreseen,  the  defendant  may  never- j 
theless  hold  him  liable  for  the  damages  he  actually  sus-/ 
tained  ;  and  that,  if  an  attachment  be  set  aside  by  order 


1  Hill  V.  Rushing,  4  Alabama,  212. 
-  Love  V.  ludwell,  4  Blackford,  553. 

[151] 


§  165  ATTACHMENT    BONDS.  [ciI.  VI. 

of  the  court,  it  \spimd  facie  evidence  that  it  was  wrong- 
fully obtained/  A  decision  was  once  given,  that  would 
seem  to  exempt  the  surcti/  in  such  a  case  from  liability;^ 
but  this  doctrine  was  held  to  be  inapplicable  to  the 
plaintiff.  ^  As  in  that  State  the  defendant's  claim  on 
the  bond  for  damages  undoubtedly  rests  on  its  being 
decided  that  the  attachment  was  "  tvrongfiiUi/  oMaincd^'  it 
is  diflficidt  to  see  upon  what  principle  the  plaintiff  can 
be  charged,  when  it  is  admitted  that  the  attachment 
was  rigliifullii  obtained,  but  he  fliiled  to  obtain  a  judg- 
ment, for  technical  reasons,  having  no  connection  with 
the  merits  of  the  action  or  the  cause  for  attachment. 

§  165.  The  Supreme  Court  of  Alabama  took  a  differ- 
ent view  of  the  subject,  and  one  more  consonant  with 
sound  reason.  In  an  action  on  an  attachment  bond 
the  condition  of  which  was,  "  that  the  plaintiff  should 
prosecute  his  attachment  to  effect,  and  pay  the  defend- 
ant all  such  costs  and  damages  as  he  may  sustain  by  the 
■^vrongfid  or  vexatious  suing  out  the  attachment,"  it  ap- 
peared that  in  the  attachment  suit  the  defendant,  by  a 
plea  in  abatement,  caused  the  attachment  to  be  quashed, 
for  informality  in  the  affidavit  upon  which  it  issued, 
and  then  sued  the  plaintiff  for  damages.  On  the  trial 
of  this  suit  for  damages,  it  was  shown  that  there  were 
good  grounds  for  the  attachment,  though  not  suffi- 
ciently set  out  in  the  affidavit.  The  court  charged  the 
jury,  that  if  they  believed  the  attachment  was  sued  out, 
and  was  abated  on  plea,  the  plaintiff  was  entitled  to  re- 


^  Cox  V.  Robinson,  2  Robinson  (La.),  313. 
"  Garretson  r.  Zaclmrie,  8  Martin,  N.  s.  481. 
3  (Tox  V.  Robinson,  2  Robinson  (La.),  313. 

[152] 


CH.  YI.]  ATTACmiENT    BONDS.  §  167 

cover  the  actual  damage  he  had  sustained.  The  Supreme 
Court  held  this  instruction  to  be  wrong,  and  observed  : 
"  What  is  meant  by  the  term  ^  wrongful/  as  used  in  the 
statute  to  which  this  bond  conforms  ?  Was  it,  as  is 
contended,  designed  to  apply  to  defects  in  the  form  of 
the  proceeding,  on  account  of  w^hich  the  attachment 
should  be  quashed,  as  well  as  to  the  ground  upon  which 
it  w^as  to  be  issued  ?  Or  was  the  object  of  the  framers 
of  the  act  merely  to  provide  a  remedy  against  persons 
who  should  resort  to  this  extraordinary  remedy  to  the 
prejudice  of  another,  without  cause  or  sufficient  ground 
.therefor?  We  think  that  by  the  wrongful  suing  out  of 
the  attachment,  is  meant,  not  the  omissions,  irregulari- 
ties, or  informalities  which  the  officer  issuing  the  process 
may  have  committed  in  its  issuance,  but  that  the  party 
resorted  to  it  without  sufficient  ground."  ^ 

§  166.  In  Kentucky,  where  the  bond  was  conditioned 
"  for  the  payment  of  all  costs  and  damages  sustained  by 
the  defendant  by  reason  of  the  wrongful  issuing  of  the 
order  for  an  attachment " —  terms,  in  substance,  equiva- 
lent to  those  of  the  Louisiana  bond  —  it  is  held  that 
mere  failure  to  prosecute  the  suit  does  not  give  an  ac- 
tion on  the  bond.  The  order  must  have  been  procured 
wrongfully  and  without  just  cause,  to  constitute  a  breach 
of  the  condition,  although  the  plaintiff"  may  have  aban- 
doned the  prosecution  of  the  suit.^ 

§  167.  In  Tennessee,  the  condition  of  the  bond  is, 
"  for  satisfying  all  costs  which  shall  be  awarded  to  the 

^  Sharper.  Hunter,  16  Alabama,  765. 
=  Pettit  V.  Mercer,  8  B.  Monroe,  51. 

[153] 


§  170  ATTACHMENT    BONDS.  [CH.  VI. 

defendant,  in  case  the  plaintiff  shall  be  cast  in  the  suit, 
and  also  all  damag-es  which  shall  be  recovered  ao"ainst 
the  plaintiff  in  any  suit  or  suits  which  may  be  brought 
against  him  for  wrongfully  suing  out  the  attachment ; " 
and  it  has  been  there  decided,  that  mere  want  of  suc- 
cess does  not^jf^-r  se  subject  the  plaintiff  to  an  action.^ 

§  168.  In  an  action  on  such  a  bond,  where,  in  the 
attachment  suit,  the  proceedings  were  entirely  ex  parte, 
it  is  not  sufficient  merely  to  assign,  as  a  breach  of  the 
condition,  that  the  defendant  did  not  owe  the  debt  for 
which  the  attachment  was  sued  out ;  he  must  set  forth 
the  proceedings  under  the  attachment,  and  show  that  a 
judgment  was  given  against  him,  and  his  property  used 
to  satisfy  it ;  that  he  did  not  owe  the  debt,  and  that 
the  attachment  and  judgment  were  illegal.^ 

§  169.  In  an  action  on  the  bond  the  question  of 
probable  cause  is  not  involved,  except  in  relation  to 
the  question  of  damages,  and  no  belief  of  the  attach- 
ment plaintiff,  however  firm  and  sincere,  that  he  had 
good  ground  for  obtaining  the  attachment,  can  affect 
the  defendant's  right  to  recover  against  him  the  actual 
damage  he  has  sustained.^ 

§  170.  What  is  the  actual  damage  ?  On  general 
principles  it  must  be  the  natural,  proximate,  legal  re- 
sult or  consequence  of  the  wrongful  act.     Remote  or 


^  Smith  V.  Story,  4  Ilumplircys,  IGO. 
"  Iloshaw  V.  Hoshaw,  8  Blackford,  258. 

*  Alexander  v.  Hutchison,  9  Alabama,  825  ;  Donnell  v.  Jones,  13  Ibid. 
490;  Pettit  v.  M(^er,  8  B.  Monroe,  51. 

[154] 


CH.  yl]  attachment  eonds.  §  171 

speculative  damages  cannot  be  recovered.^     It  may  be   f 
properly  comprehended  under  two  heads  —  1.  Expenses  ; 
and  losses  incurred  by  the  party  in  making  his  defence 
to  the  attachment  proceedings ;  and  2.  The  loss  occa- 
sioned by  his  being  deprived  of  the  use  of  his  property   i 
during  the  pendency  of  the  attachment,  or  by  an  illegal    I 
sale  of  it,  or  by  injury  thereto,  or  loss  or  destruction 
thereof.^     For  losses  and  trouble  of  these  descriptions, 
it  is  considered  in  Louisiana  that  the  attachment  de- 
fendant should  be  liberally  remunerated.^ 

§  171.  Under  the  first  head  will  be  allowed  expenses 
incurred  in  obtaining  testimony  on  a  trial  (■where  such 
is  by  law  authorized)  of  the  truth  of  the  affidavit  on 
which  the  attachment  was  issued;*  costs  of  suit  gener- 
ally to  which  the  defendant  has  been  subjected;*''  and 
fees  paid  to  counsel  for  services  in  the  attachment  suit  f 
but  not  fees  to  counsel  for  services  in  the  action  for 
damages.''  Where  the  attachment  is  not  the  orio-inal 
process,  but  is  in  aid  of,  or  ancillary  to,  an  action  insti- 
tuted by  the  ordinary  process,  no  costs  connected  with 
the  defence  of  the  suit,  in  aid  of  which  the  attachment 
was  obtained,  can  be  recovered.^ 

^  Donnell  r.  Jones,  13  Alabama,  490  ;  Reidhar  v.  Berger,  8  B.  Monroe, 
IGO. 

-  Cox  V.  Robinson,  2  Robinson  (La.)  313  ;  Horn  v.  Bayard,  11  Ibid.  259; 
Pettit  V.  Mercer,  8  B.  Monroe,  51 ;   Reidhar  v.  Berger,  Ibid.  160. 

^  Offutt  V.  Edwards,  9  Robinson  (La.)  90. 

*  Hayden  v.  Sample,  10  Missouri,  215. 

^  Dunning  v.  Humphrey,  24  Wendell,  31  ;  "Winsor  v.  Orcutt,  11  Paige, 
578. 

^  Offutt  V.  Edwards,  9  Robinson  (La.)  90  ;  Littlejohn  v.  Wilcox,  2  Louis- 
iana Annual,  620. 

'  Offutt  V.  Edwards,  9  Robinson  (La.)  90. 

»  White  V.  Wylev,  17  Alabama,  167. 

[155] 


§  173  ATTACHMENT    BONDS.  [CH.  VL 

§  172.  The  rule  of  damages  under  the  second  head,  has 
been  variously  laid  down.  In  New-York,  it  was  said  by 
the  Supreme  Court  —  "the  plaintiff  is  entitled  to  such 
damages  as  a  jury  may  think  he  has  sustained  by  the 
wrongfal  seizing  and  detaining  of  his  property.  If  it 
was  taken  out  of  his  possession,  he  may  be  entitled  to 
the  value  of  it ;  if  seized  and  left  in  his  possession,  to 
such  damages  as  may  be  awarded  for  the  unlawful  in- 
termeddling with  his  property."  ^  But  the  same  court 
afterwards  held  that  no  more  than  nominal  damag;es 
can  be  recovered,  where  the  defendant  is  not  dispos- 
sessed.^ 

§  173.  In  Kentucky,  it  was  determined  that  the 
plaintiff  can  only  recover  damages  for  the  injury  he  has 
sustained,  by  being  deprived  of  the  use  of  his  property, 
or  its  loss,  destruction,  or  deterioration.'^  Subsequently^, 
the  court  stated  the  rule  on  some  points  more  specifi- 
cally, and  said  —  "The  inquiry  in  regard  to  the  injury 
which  the  party  may  sustain  by  the  deprivation  of  the 
use  of  his  property,  should  be  limited  to  the  actual  value 
of  the  use :  as,  for  example,  the  rent  of  real  estate,  the 
hire  or  services  of  slaves,  or  the  value  of  the  use  of  any 
other  species  of  property  in  itself  productive.  The 
property  in  this  case  was  not  of  that  character,  and  the 
injury  from  being  deprived  of  its  use,  should  be  re- 
stricted to  the  interest  on  the  value  thereof  For  any 
injury  beyond  that,  the  damages  would  be  conjectural, 
inde(inite,  and  uncertain,  and  the  plaintiff  cannot  re- 


^  Dunning  v.  Humphrey,  21  Wendell,  31. 
2  Groat  V.  Gillespie,  25  Wendell,  383. 
^Pcttit  V.  Mercer,  8  B.  Monroe,  51. 

[  156  ] 


en.  yl]  attachment  bonds.  §  1T5 

cover  in  tins  action.  If,  however,  the  property  is  dam- 
ao-ecl,  or  if  when  returned  it  should  be  of  less  value  than 
when  seized,  in  consequence  of  the  depreciation  in  price, 
or  from  any  other  cause,  for  such  difference  the  plaintiff 
would  be  entitled  to  recover.  But  this  rule,  so  far  as  it 
relates  to  the  fall  or  depreciation  of  the  price,  would 
not  be  applicable  to  every  species  of  property.  It 
would,  however,  clearly  apply  in  this  case,  as  it  was  the 
trade  and  business  of  the  party  to  vend  the  goods  at- 
tached, and  not  to  keep  them  for  mere  use. 


"1 


§  174.  The  court  properly  intimated,  in  the  language 
just  quoted,  that  the  allowance  for  depreciation  in  the 
value  of  the  property  w^hile  under  attachment,  would 
not  be  applicable  to  every  species  of  property.  For  in- 
stance, if  real  estate  be  attached,  without  interfering 
with  the  defendant's  possession,  nothing  can  be  recov- 
ered in  an  action  on  the  bond  on  account  of  deprecia- 
tion in  its  value  during  the  pendency  of  the  attach- 
ment.^ 

§  175.  In  Louisiana,  the  following  case  arose  :  —  Cer- 
tain parties  took  out  an  attachment  in  February,  1842, 
ao-ainst  the  Girard  Bank,  and  seized  certain  clioses  in 
action,  which,  at  the  time,  and  for  some  months  after, 
were  worth  in  New  Orleans  §18,500.  In  August,  1842, 
the  attachment  plaintiffs,  having  obtained  judgment, 
caused  the  clioses  in  action  to  be  sold  by  the  sheriff,  at  a 
great  sacrifice,  for  the  sum  of  $9,140.     Afterwards,  the 


1  Reidhar  r.  Berger,  8  B.  Monroe,  160. 
=  Heath  r.  Lent,  1  California,  410. 

14  [157] 


§  177  ATTACHMENT    BONDS.  [CH.  VI. 

judgment  was  reversed,  and  the  assignees  of  the  bank 
sued  the  attachment  plaintiffs  for  the  difference  between 
these  sums,  and  recovered  judgment  for  $5,145  dam- 
ages. Whether  the  suit  was  on  the  attachment  bond 
does  not  appear  in  the  report  of  the  case.  The  Su- 
preme Court  affirmed  the  judgment,  holding  the  plain- 
tiffs entitled  to  recover  the  actual  damage  sustained.^ 

§  176.  In  New  York,  an  action  was  brought  on  an 
attachment  bond,  where  it  appeared  that  the  plaintiff 
in  the  attachment  was  nonsuited;  but  immediately 
after  sued  out  another  attachment,  and  seized  the  same 
property  which  was  attached  in  the  first  suit,  and  after- 
wards, on  obtaining  judgment,  caused  the  property  to 
be  sold  under  his  execution.  It  was  held  that  the  ap- 
plication of  the  defendant's  property  to  the  satisfaction 
of  the  judgment  in  the  second  suit,  was  properly  admis- 
sible in  evidence  to  reduce  the  amount  of  damages 
sought  to  be  recovered.^ 

§  177.  The  liability  of  an  attachment  plaintiff  for  ac- 
tual damage,  exists  as  well  where  the  attachment  is 
sued  out  by  his  attorney,  as  where  he  obtains  it  him- 
self ;)but  no  malice  exhibited  by  the  attorney  in  his 
proceedings,  can  be  given  in  evidence  against  his  client, 
so  as  to  make  him  liable  for  exemplary  damages.'^  And 
where  the  attachment  was  taken  out  by  an  agent,  who 
also  executed  the  bond,  the  declaration  on  the  bond 


^  Horn  V.  Bayard,  11  Robinson  (La.)  250. 

-  Earl  V.  Spooner,  3  Denio,  246. 

3  Kirksey  v.  Jones,  7  Alabama,  622 ;  McCuUougb  v.  Walton,  11  Ibid.  492. 


CH.  YI.]  ATTACHMENT   BONDS.  §  1T8 

was  held  to  be  insufficient,  -whicli  charged  that  the  at- 
tachment was  wrongfully  and  vexatiously  sued  out  by 
the  oblio-ors  in  the  bond :  it  should  have  averred  that  it 
was  so  sued  out  by  the  plaintiff.^ 

§  178.  An  administrator  who  sues  out  an  attachment 
and  executes  the  bond,  describing  himself  therein  as 
administrator,  cannot  be  sued  on  the  bond  in  his  repre- 
sentative character,  nor  can  he  subject  the  estate  to  an 
action  for  damages  by  his  tortious  conduct.  He  is  liable 
to  respond  personally  for  the  injury,  and  is  properly 
sued  in  his  individual  character.^ 


1  McCullough  V.  Walton,  11  Alabama,  492. 
^  Gilmer  v.  Wier,  8  Alabama,  72. 

[159] 


CHAPTEE   VII. 

OF   THE   EXECUTION  AND   RETURN   OF   ATTACHMENT. 

§  179.  When  an  attachment  is  placed  in  the  hands 
of  an  officer  to  be  executed,  he  should  see  that  it  is 
substantially  legal  in  its  form ;  for  if  it  be  defective  in 
this  respect,  a  levy  made  under  it  may  be  inoperative. 
Thus,  where  an  attachment  was  made  on  the  2Sth  of 
December,  1822,  under  a  writ  dated  the  28th  of  Feb- 
ruary, 1822,  and  returnable  to  the  next  May  Term  of 
the  court  after  its  date ;  and  trover  was  brought  against 
the  officer  for  the  property ;  it  was  held,  that  the  officer 
should  not  be  permitted  to  prove  that  the  writ  was  in 
fact  sued  out  on  the  28th  of  December,  1822,  and  was 
intended  to  be  made  returnable  at  May  Term,  1823,  but 
the  word  "February"  had  been  inserted  by  mistake, 
instead  of  "December;"  and  that,  as  the  writ  was 
made  returnable  at  May  Term,  1822,  and  then  became 
fiuictus  officio,  nothing  could  be  done  under  it  in  Decem- 
ber, 1822.1 

§  180.  If  the  writ  be  in  legal  form,  and  issued  out  of 
a  court  having  competent  jurisdiction,  it  will  be  a  com- 
plete justification  to  the  officer  in  attaching;  and 
there  can  therefore  be  no  obligation  on  him  to  inves- 

*  ^  Dame  v.  Fales,  3  New  Ilamp.  70. 

[160] 


CH.  til]      execution    and    return    of   ATTACmiENT.        §  182 

tigate  ^Yhether  the  preliminary  steps  required  for  ob- 
'taining  it  have  been  pursued.^ 

§  181.  It  is  the  duty  of  an  officer,  on  recei\ang  an 
attachment,  to  levy  it  on  any  property  of  the  defend- 
ant he  can  find,  of  the  description  recited  in  the  writ. 
Personal  property  found  in  the  defendant's  possession 
may  be  presumed  to  be  his,  if  nothing  appear  to  the 
contrary.  If  an  ofdcer  omits  to  attach  property  so  sit- 
uated, when  necessary  for  the  plaintiff's  security,  he 
cannot  be  excused,  unless  he  can  prove  that,  notwith- 
standing such  appearances,  the  property  was  not  in  fact 
the  defendant's;  in  which  case  the  burden  of  proof 
will  rest  upon  the  officer ;  or  unless,  where  there  were 
reasonable  grounds  to  suspect  that  the  defendant  was 
not  the  owner,  the  plaintiff  refused  to  indemnify  the 
officer  for  any  mistake  he  might  make  in  conforming 
to  the  plaintiff's  direction.^ 

§  182.  To  ascertain  who  is  the  actual  owner  of  per- 
sonal property,  notwithstanding  the  indication  arising 
from  acts  of  ownership,  is  often  attended  with  diffi- 
culty ;  and  an  officer  ought  not  to  be  holden  to  proceed  ' 
to  make  an  attachment,  without  an  indemnity,  where 
there  is  great  danger  of  his  committing  a  trespass  in 
so  doing;  and  where  he  has  good  reason  to  doubt 
whether  goods  are  the  property  of  the  defendant,  he 
may  insist  on  the  plaintiff's  showing  them  to  him,  and 
also  on  being  indemnified.^ 


1  Fulton  r.  Heaton,  1  Barbour,  S.  C.  552;  Kirksey  i-.  Dubose,  19  Ala- 
bama, 43  ;  Banta  v.  Reynolds,  3  B.  Monroe,  80  ;  Garnet  i^.  AVimp,  Ibid.  360.  • 
-  Bradford  v.  iMcLellan,  23  Maine,  302. 
3  Bond  V.  Ward,  7  Mass.  123;  Sibley  v.  Brown,  15  ]Maine,  185. 

U^  [161] 


§  184    EXECUTION  AND  RETURN  OF  ATTACHMENT.  [CH.  VII. 

§  183.  In  proceeding  to  execute  the  writ,  the  officer 
should  avoid  all  unnecessary  delay,  lest  other  writs 
should  obtain  a  precedence.  For  the  same  reason,  after 
the  attachment  is  begun,  it  should  be  continued  with 
as  little  interruption  as  possible.  Cases  not  unfre- 
quently  arise,  in  which  delay  or  interruption  in  the 
discharge  of  this  duty,  involves  the  officer  in  serious 
consequences.  No  general  rule  governing  such  cases 
can  very  well  be  laid  down ;  but  each  case  must  depend 
very  much  on  its  particular  circumstances.  As  a  prop- 
osition generally  applicable,  however,  it  may  be  said 
that  the  officer  should  take  care  that  his  levy  be  a  con- 
tinuous and  single  act,  as  contradistinguished  from  a 
number  of  distinct  acts,  performed  at  different  times, 
and  not  in  reasonable  and  necessary  connection. 

§  184.  Where  a  variety  of  articles  are  attached,  and 
it  requires  considerable  time  to  complete  the  process,  if 
the  officer,  after  he  has  begun  it,  continues  in  it,  with 
no  unnecessary  delay,  until  he  has  secured  all  the 
goods,  the  taking  is  to  be  treated  as  one  act.  But 
where  an  officer  took  and  removed  sundry  finished 
carriaores,  to  an  amount  which  he  deemed  sufficient  to 
secure  the  demand  in  the  writ,  and,  on  the  day  follow- 
ing, having  changed  his  mind  in  regard  to  some  of  the 
property,  he  determined  not  to  take  away  a  part  of  the 
finished  carriages  he  had  attached,  but,  in  lieu  thereof, 
to  make  another  attachment  of  unfinished  work,  which 
he  did,  and  then  removed  the  unfinished  work,  with 
part  of  that  first  attached  ;  it  was  held,  that  the  attach- 
ment might  properly  be  considered  as  consisting  of  two 

distinct  acts.-^ 

^ 

^  Bishop  I'.  Warner,  19  Conn.  4C0. 

[162] 


en.  yil]    execution  and  return  of  attachment.       §  186 

§  185.  In  executing  the  writ,  the  officer  should  act 
in  conformity  to  the  law  under  which  he  proceeds ;  for  if 
the  service  be  illegal,  no  lien  is  created  on  the  property.^ 
He  must  also  perform  his  duty  in  such  a  manner  as  to 
do  no  wrong  to  the  defendant.  On  such  occasions  he 
must  be  allowed  the  exercise  of  some  discretion,  and  is 
not  to  be  made  liable  for  every  trivial  mistake  of  judg- 
ment he  may  make  in  doubtful  cases.  But  the  discre- 
tion allowed  him  must  be  a  sound  discretion,  exercised 
with  perfect  good  faith,  and  with  an  intent  to  subserve 
the  interests  of  both  the  debtor  and  the  creditor.^  For, 
when  an  officer  wholly  departs  from  the  course  pointed 
out  for  him  by  the  law,  he  may  be  considered  as  in- 
tending from  the  beginning  to  do  so,  and  as  making 
use  of  the  process  of  law  for  a  mere  pretence  and 
cover ;  and  therefore  he  is  liable  in  the  same  manner, 
and  for  the  same  damages,  as  he  w^ould  have  been,  if  he 
had  done  the  same  acts  without  the  legal  warrant  he 
abused  ;  he  will  be  considered  a  trespasser  ah  initio.  In 
other  words,  he  who  at  first  acts  with  propriety  under 
an  authority  or  license  given  by  law,  and  afterwards 
abuses  it,  shall  be  considered  a  trespasser  from  the 
beginning.'^ 

§  186.  The  reason  of  this  rule  seems  to  be,  that  it 
would  be  contrary  to  sound  public  policy,  to  permit  a 
man  to  justify  himself  at  all  under  a  license,  or  author- 
ity, allowed  him  by  law,  after  he  had  abused  the  license 
or  authority,  and  nised  it  for  improper  purposes.  The 
presumption  of  law  is,  that  he  who  thus  abuses  such  an 


^  Gardner  r.  Hunt,  2  Richardson,  COl. 
2  Barrett  v.  White,  3  Xew  Ilamp.  210. 
=  Ibid. 


[163] 


§   189  EXECUTION   AND    RETURN    OF   ATTACHMENT.     [CH.  VII. 

authority,  assumed  the  exercise  of  it,  in  the  first  place, 
for  the  purpose  of  abusing  it.  The  abuse  is  therefore 
very  justly  held  to  be  a  forfeiture  of  all  the  protection 
which  the  law  would  otherwise  give.  Therefore,  where 
an  officer  attached  certain  hay  and  grain  in  a  barn,  and, 
without  any  necessity,  removed  the  same  from  the  barn 
at  an  unfit  and  unreasonable  time,  when  it  must  inev- 
itably be  exposed  to  great  and  unnecessary  waste  and 
destruction,  it  was  held,  on  the  principles  above  laid 
down,  to  be  such  an  abuse  as  to  render  the  ofiicer  a 
trespasser  ab  initio} 

§  187.  The  officer  should  also  be  careful  not  to  levy 
the  writ  on  any  property  not  liable  to  attachment ;  for 
if  he  do  he  will  be  considered  a  trespasser.^ 

§188.  If  the  goods  of  a  stranger  are  in  the  posses- 
sion of  a  defendant,  and  so  mixed  with  the  defendant's 
goods  that  the  officer,  on  due  inquiry,  cannot  distin- 
guish them,  even  though  the  owner  be  not  aware  of 
such  intermixture,  he  cannot  maintain  an  action  against 
the  officer  for  taking  them,  until  he  shall  have  notified 
the  officer,  and  demanded  his  goods,  and  the  officer 
shall  have  refused  or  delayed  to  deliver  them :  ^  much 
less  where  he  knows  of  the  attachment,  and  has  an  op- 
portunity of  claiming  his  property,  and  fiiils  to  do  so.'^ 

§  189.  But  where  in  such  a  case  of  intermixture  it 
appeared  that  the  officer  made  no  inquiry  at  all,  and 

^  Barret  r.  White,  3  New  Ilamp.  210. 

"  Foss  V.  Stewart,  14  Maine,  312,  and  the  cases  there  cited. 

8  Tufts  V.  McClintoch,  28  Maine,  424. 

♦  Bond  c.  Wart;  7  Mass.  123  ;   Lewis  r.  Whittemore,  5  New  Ilamp.  3G4. 

[164] 


CH.  YII.]     EXECUTION   AND    RETURN    OF   ATTACmiENT.  §  190 

the  owner  of  the  property  did  not  know  of  the  seizure 
and  sale  thereof,  and  that  the  manner  in  which  the- 
officer  advertised  the  property  for  sale,  gave  strong  in- 
ternal evidence  that  he  must  have  been  apprised  that 
there  was  a  defect  in  the  defendant's  title  to  the  prop- 
erty, it  was  held,  that  the  owner  might  maintain  tres- 
pass against  the  officer  for  taking  the  property.^  A  for- 
tiori, will  the  officer  be  liable,  if  the  owner  points  out 
his  goods  and  demands  a  redelivery  of  them,  and  the 
officer,  notwithstanding,  sells  them.^  In  such  a  case,  if 
the  owner  exhibits  to  the  officer  a  bill  of  sale  of  articles 
of  the  same  kind  with  others  attached,  with  which  they 
were  so  mixed  as  to  be  undistinguishable,  the  officer 
will  be  justified  in  selecting  and  giving  up  the  least  val- 
uable articles  corresponding  with  the  bill  of  sale." 

§  190.  \Yhere  there  is  no  intermixture  of  similar 
property,  the  necessity  for  the  officer's  making  due  in- 
quiry concerning  the  property  he  attaches  is  so  highly 
regarded,  that  he  will  be  treated  as  a  trespasser  for  seiz- 
ing property  not  belonging  to  the  defendant,  even 
though  the  owner  give  him  no  special  notice  that  the 
property  is  his,  and  make  no  demand  for  it.*  And  this 
remedy  of  the  o^^'ner  against  the  officer  is  not  impaired 
by  the  owner  becoming  the  receipter  to  the  officer  for 
the  property ;  for  in  such  case  the  owner  is  bound  by 
the  terms  of  the  receipt  to  retain  the  property  and  have 
it  ready  for  delivery  on  demand ;  and  in  an  action  on 
the  receipt  would  be  estojDped  from  setting  up  property 

^  Sibley  v.  Brown,  15  Maine,  185. 
-  Shuniway  v.  Kutter,  8  Pick.  443. 
3  Ibid. 
*  Stickney  v.  Davis,  16  Pick.  19. 

[165] 


§  191    EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CH.  VII. 

in  himself.^  In  Connecticut,  it  is  held  to  be  well  set- 
tled, that,  as  against  the  owner  of  the  property,  the 
taking  of  it  by  an  attachment  issued  against  another 
person,  is  a  tortious  act,  and  therefore  constitutes  a  con- 
version ;  ^  and  in  Pennsylvania,  that  the  return  by  an 
officer  that  he  has  attached  goods,  which  appear  not  to 
have  been  the  defendant's,  subjects  the  officer  to  an  ac- 
tion of  trespass,  where  the  property  was  bound  by  the 
levy,  and  was  in  the  officer's  power,  though  there  was 
no  manual  handling  or  taking  them  into  possession.^ 
The  same  doctrine  has  been  recognized  in  Massachu- 
setts.^ 

§  191.  An  officer  having  an  attachment  may  enter 
the  store  of  a  third  person  where  goods  of  the  defendant 
are,  for  the  purpose  of  executing  the  writ,  and  may 
even  break  open  the  door,  if  refused  admittance  on  re- 
quest, and  may  remain  there  long  enough  to  seize, 
secure,  and  inventory  the  goods ;  and  if  ,the  owner  of 
the  store  resist  or  oppose  him,  he  may  use  whatever 
force  is  necessary  to  enable  him  to  perform  his  duty.^ 
But  if,  in  such  case,  the  officer  take  exclusive  possession 
of  the  building,  excluding  the  owner,  he  may,  as  re- 
spects the  owner,  be  regarded  as  a  trespasser  ah  initio.^ 
When,  however,  the  matter  of  forcing  an  entrance  into 
a  dwelling-house,  for  the  purpose  of  attaching  property, 
is  presented,  the  law  takes  diffi;rent  ground,  and  not 


1  Rdbinson  v.  Mansfield,  13  Pick.  130  ;  Johns  r.  Church,  12  Ibid.  557. 

-  Meade  »'.■  Smith,  16  Conn.  34G. 

3  Paxton  V.  Steckel,  2  Penn.  State,  03. 

*  Gibbs  V.  Chase,  10  Mass.  128;  Miller  v.  Baker,  1  Metcalf,  27. 

5  Fulleiton  i'.  Mack,  2  Aikens,  415;  Piatt  v.  Brown,  16  Pick.  553. 

•  Fullcrton  v.  INIat*,  2  Aikens,  415  ;  Newton  v.  Adams,  4  Term.  437 

[166] 


CH.  VII.]     EXECUTION    AND    KETURN    OF    ATTACHMENT.  §  194 

only  declares  such  forcing  an  nnlawful  act,  but  that  the 
attachment  made  by  means  of  it  is  unlawful  and  invalid.^ 

§  192.  In  a  case  which  came  up  in  Maine,  it  was  at- 
tempted to  establish  the  doctrine  that  an  officer  who 
levies  an  attachment  on  property  of  greater  amount  in 
value  than  the  debt  to  be  secured,  transcends  his  au- 
thority, and  becomes  a  trespasser  ah  initio,  and  therefore 
that  the  attachment  is  invalid.  But  the  court  held  that 
it  did  not  necessarily  follow  that  the  officer  acted  op- 
pressively or  illegally  in  that  case,  because  he  attached 
more  property  than  was  necessary  to  satisfy  the  attach- 
ment ;  that  if  he  acted  oppressively  he  might  be  liable 
to  an  action  by  the  party  injured;  but  that  third  per- 
sons could  not  interpose  and  claim  to  set  aside  the 
attachment  for  that  cause.^ 

§  193.  An  officer  should  not  do  any  act,  at  the  time 
of  making  an  attachment,  wdiich  could  be  construed  into 
an  abandonment  of  the  attachment,  or  the  attachment 
will  be  a  nullity,  and  must  be  considered  the  same  as  if 
none  had  been  made.^ 

§  194.  The  officer  having  duly  levied  the  attachment, 
his  next  duty  is  to  make  return  of  it.  And  as  his  re- 
turn is  in  general  conclusive  against  him,  and  cannot  be 
disproved  by  parol  evidence,*  it  is  important,  not  only 
to  all  parties  interested,  but  to  himself,  that  it  should  be 

'1  Ilsley  V.  Nichols,  12  Pick.  270;  People  v.  Hubbard,  24  Wendell,  369. 
2  Merrill  i-.  Curtis,  18  Maine,  272. 
2  French  v.  Stanley,  21  Maine,  512. 

*  Paxton  V.  Steckel,  2  Penn.  State,  93  ;  French  v.  Stanley,  21  Maine,  512  ; 
Haynes  v.  Small,  22  Maine,  14;  Denny  v.  Willard,  11  Pick.  519. 

[167] 


§195         EXECUTION   AND    RETURN    OF   ATTACHMENT.     [CH.  VH. 

made  %Yitli  great  care.     In  a  case  which  came  up  in 
Maine,^  the  com-t  use  this  language :    "  Officers  ought 
to  know  what  they  attach,  and  to  be  holden  to  exact- 
ness and  precision  in  making  their  returns.     Neither 
the  debtor  nor  the  creditor  would  be  safe  if  it  were 
otherwise.     And  it  is  well  that  the  law  should  be  so 
promulgated  and  imderstood.     An  officer  in  such  cases 
is  intrusted  with  great  power.     He  may  seize  another 
man's   property,   without   the   presence    of    witnesses, 
v/hether  it  be  goods  in  a  store  or  elsewhere  ;  and  safety 
only  lies  in  holding  him  to  a  strict,  minute,  and  partic- 
ular account.     To  hold  that  he  may,  indifferently,  make 
return  of  his  doings  at  random,  and  afterwards  be  per- 
mitted to  show  that  what  he  actually  did  was  entirely 
different,  would  be  opening  a  door  to  infinite  laxity  and 
fraud,  and  mischiefs  incalculable."     The  court,  acting 
on  these  views,  held,  where  the  officer  had  returned  an 
attachment  of  175  yards  of  broadcloth,  and  was  sued 
for  not  having  the  cloth  forthcoming  on  execution,  that 
he  could  not  give  evidence  that  he  had  attached  all  the 
broadcloths   in  the   defendant's   possession;    that   the 
whole  of  the  broadcloths  so  attached  amounted  to  no 
more  than  thirty  yards ;  and  that  by  mistake  he  over- 
estimated the  number  of  yards  in  the  lot. 

§  195.  But  though  an  officer's  return  is  in  general 
conclusive  against  him,  yet  where  it  states  a  thing 
which,  from  the  nature  of  the  case,  must  be  a  matter 
of  opinion  only,  it  has  been  held  that  he  is  not  con- 
cluded by  it,  but  may  explain  it  by  parol  evidence. 
Thus,  where  the  return  affixes  a  value  to  the  goods 


^'  1  Ilavncs  V.  Small,  22  Malue,  14. 

[168] 


CH.  til]    execution  xv:nd  return  of  attachment.       §  197 

levied  on,  the  sheriff  will  not  be  concliided  by  it;^  but 
it  will  be  held,  tis  against  him,  to  he  pimd  facie  a  just 
and  fair  valuation,  and  the  onus  prolancU  will  rest  on 
him  to  establish  the  contrary .^  So,  where  a  sheriff  re- 
turned that  he  had  attached  certain  goods,  at  the  hour 
of  five  o'clock ;  it  was  held  that  the  return  was  2^rimd 
facie  indicative  of  the  true  time,  and  might,  if  no  other 
standard  could  be  found,  be  conclusive  on  him;  but 
that  it  was  impossible  for  the  sheriff  to  Ihiow,  from  his 
iudsment  or  his  watch,  that  five  o'clock  was  the  exact 
period  of  the  levy,  and  his  opinion  on  this  point,  un- 
necessarily returned,  ought  not  to  be  considered  as  a 
conclusive  averment  of  fact,  but  might  be  explained 
by  parol  testimony  showing  the  moment  when  the  levy 
took  place.^ 

§  196.  It  is  proper  that  the  return  should  state  that 
the  property  levied  on  was  the  property  of  the  defend- 
ant. Whether  the  want  of  such  a  statement  would 
invalidate  the  levy,  is  not  certain.  In  Missouri  and 
Kentucky,  it  is  held  that  an  attachment  of  property, 
without  saying  whose  property  it  was,  is  bad.*  But  in 
Alabama,  it  was  decided  that  in  such  a  case  it  will  be 
intended  that  the  property  was  the  defendant's.^  The 
latter  would  seem,  in  the  absence  of  any  peculiar 
statutory  provision,  to  be  the  better  view. 

§  197.   Where  an  attachment  issued  against  Charles 


1  Denton  v.  Livingston,  9  Johnson,  96. 

2  Pierce  v.  Strickland,  2  Story,  292. 

^  Williams  v.  Cheesborougli,  4  Conn.  35G. 

*  Anderson  v.  Scott,  2  Missouri,  15 ;  Mason  v.  Anderson,  3  T.  B.  Monroe,, 
293. 

5  Bickerstaff  v.  Batterson,  8  Porter,  245. 

15  [169] 


§  199  EXECUTION   AND    RETURN    OF    ATTACHMENT.      [CH.  VII. 

G.  Miller,  William  J.  Wright,  and  Thomas  R  Crews, 
and  was  returned  "  levied  on  four  bags  marked  T.  R.  C, 
also  twenty-one  bags,  W.  J.  W.,  also  fifteen  bags  marked 
C.  G.  Miller,  as  the  property  of  the  defendants,"  it  was 
held  that  the  return  sufficiently  showed  that  the  prop- 
erty levied  on  was  the  property  of  the  defendants.-^ 

§  198.  By  the  general  principles  of  law,  independent 
of  any  statutory  regulation,  the  officer  is  bound  to 
give,  as  nearly  as  it  can  reasonably  be  done,  in  his 
return,  or  in  a  schedule  or  inventory  annexed  thereto, 
a  specific  description  of  the  articles  attached,  their 
quantity,  size,  and  number,  and  any  other  circum- 
stances proper  to  ascertain  their  identity.^  It  does  not 
seem,  however,  that  any  more  precision  should  be 
exhibited  in  the  return  than  is  necessary  for  the  identi- 
fication of  the  property:  hence,  where  a  sheriff  returned 
an  attachment  of  four  horses  (describing  their  color), 
as  the  property  of  the  defendant,  it  was  held  sufficient.^ 
A  failure  to  specify  the  articles  attached,  will,  however, 
subject  the  officer  to  nominal  damages  only,  unless 
special  damage  be  shown.* 

§  199.  Unless  required  by  statute,  it  is  no  part  of  an 
officer's  duty  to  affix  a  valuation  to  the  property  he 
attaches.^  We  have  just  seen  that  the  statement  of  a 
valuation  will,  however,  be  prima  facie   evidence,  as 


1  Milfcr  V.  MclSIillan,  4  Alabama,  527. 

"Pierce   u.  ^Strickland,  2    Story,    292;    Baxter  v.  Rice,  21   Pick.   197  j 
Haines  v.  Small,  22  Maine,  14;  Toulmin  v.  Lcsesne,  2  Alabama,  359. 

2  Gary  v.  McCown,  6  Alabama,  370. 

*  Bruce  v.  Pettengill,  12  New  Hamp.  341. 
'•-  Pierce  v.  Strickland,  2  ^ory,  292. 

[170] 


CH.  YII.]      EXECUTION    AND    RETURN    OF   ATTACHMENT.  §  201 

against  him,  of  its  own  correctness.  The  omission  to 
affix  a  value,  when  he  is  not  bomicl  to  state  it,  tan 
hardly  in  any  case  prejudice  the  officer.  In  such  an 
extreme  case,  however,  as  arose  in  Maine,  where  there 
was  an  entire  absence  of  all  evidence  of  the  value  of 
the  property,  it  would  probably  be  held,  as  it  was  there, 
that  the  property  was  of  the  value  commanded  to  be 
attached.^ 

•  §  200.  Where  an  officer  is  a  party,  either  claiming 
or  justifying  under  his  own  official  acts,  his  return  must 
be  received  as  evidence.  Otherwise  it  would  be  im- 
possible, in  most  cases,  to  prove  an  attachment  of  prop- 
erty on  meme  process,  or  its  seizure  on  execution.  The 
officer  might  produce  his  precept  and  show  his  return 
upon  it,  but  if  this  be  wq\^  pimci  facie  evidence,  he  could 
never  prove  the  attachment,  unless  he  took  or  happened 
to  have  with  him  a  witness  to  prove  the  truth  of  his 
return.  It  may  therefore  be  laid  down  as  an  unques- 
tioned rule,  that  the  returns  of  sworn  officers,  acting 
within  the  sphere  of  their  official  duty,  are  always  com- 
petent evidence,  and  are  to  be  presumed  to  be  correct, 
until  the  contrary  be  showu.^ 

§  201.  When  an  attachment  has  been  returned,  the 
return  is  beyond  the  reach  of  the  officer  and  of  the 
court  into  which  it  is  made,  unless  a  proper  case  be  pre- 
sented for  the  court  to  grant  leave  to  amend  it.  The 
court  will  not  order  a  return  to  be  set  aside  upon  the 
application  of  a  party  to  the  cause,  on  his  averring  its 

1  Chllds  V.  Ham,  23  Maine,  74. 

"Bruce  v.  Holden,  21  Pick.  187;  Sias  v.  Badger,  6  Xew  Hamp.  393; 
]S:icliol3  V.  Patten,  18  Maine,  231. 

[171] 


§  203    EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CH.  YII. 

incorrectness;^  nor  can  a  court,  where  one  tract  of  land 
is  attached,  and  so  returned,  require  the  officer,  by  rule, 
to  substitute  a  different  tract.^ 

§  202.  As  a  general  proposition,  every  court  may 
allow  amendments  of  returns  upon  its  process.  All  ap- 
plications for  the  exercise  of  this  power,  are  addressed 
to  the  sound  legal  discretion  of  the  court,  to  be  deter- 
mined by  the  nature  and  effect  of  the  proposed  amend- 
ment;^ and  being  so,  a  refusal  to  allow  an  amendment 
will  not  be  error.^  And  though  amendments  may  be 
allowed,  which,  on  consideration,  may  appear  of  doubt- 
ful expediency,  yet  if  they  are  permitted  m  the  legal 
exercise  of  a  discretion,  their  propriety  will  not  in  gen- 
eral be  questioned  on  exceptions.  But  if  the  amend- 
ment be  one  which  the  law  does  not  authorize,  it  is 
otherwise.^  The  exercise  of  this  discretion  is,  in  the 
absence  of  power  conferred  by  statute,  confined  to  the 
court  out  of  which  the  process  issued  ;  therefore,  a  supe- 
rior court  has  no  right,  on  a  trial  before  it,  to  permit  a 
return  made  to  an  inferior  court  to  be  amended." 

§  203.  An  officer  cannot,  as  a  matter  of  right,  amend 
a  return  he  has  once  duly  made.  This  would  be  to 
place  at  his  discretion  the  verity  and  consistency  of 
records,  and  the  effect  and  authority  of  the  most  solemn 


1  Maris  v.  Sclicrmerhorn,  3"\Vliarton,  13. 
-  Stefninctz  r.  Nixon,  3  Yeatcs,  285. 

3  Miller  v.  Shacklcford,  4  Dana,  2G4  ;  Fowble  v.  Walker,  4  Ohio,  G4. 
*  Planters  Bank  v.  Walker,  3  Smedes  &  Marshall,  409. 
'-  Fairfield  v.  Paine,  23  Maine,  498. 

«  Smith  I'.  Low,  2  Iredell,  457  ;  Harper  v.  Miller,  4  Ibid.  34  ;  Brainard  v. 
Burton,  5  Vermont,  97.       v* 

[172] 


CH.  VII.]      EXECUTION   AND    RETURN    OF    ATTACHMENT.  §  206 

judgments.^  But  until  the  process  is  actually  deposited 
in  the  clerk's  office,  the  return  does  not  become  matter 
of  record,  even  though  the  officer  keep  the  process  in 
his  possession  long  after  the  time  when  it  should  be  re- 
turned ;  and  until  the  return  is  actually  made,  the  pro- 
cess is  under  his  control  and  in  his  power,  and  he  does 
not  need  the  authority  of  the  court  to  amend  it.^ 

§  204.  If  the  amendment  is  sought  in  a  mere  matter 
of  form,  such  as  affixing  the  signature  of  the  officer  to 
a  return  already  written  out,  but  which  by  oversight 
was  not  signed,  there  can  be  no  good  reason  why  it 
should  not  be  allowed.^  And  where  the  mistake  is  a 
mere  slip  of  the  .pen,  manifest  on  the  face  of  the  record, 
and  concerning  w^iich  no  party  who  examined  the 
record  could  doubt,  the  officer  will  be  allowed  to  amend, 
even  after  final  judgment  in  the  cause."^ 

§  205.  When  an  amendment  is  allowed,  it  relates,  as 
between  the  parties  to  the  suit,  to  the  time  wdien  the 
original  return  was  made;^  and  the  amendment  and 
the  original  will,  if  necessary  to  a  proper  understanding 
of  the  doing-s  of  the  officer,  be  considered  as  one  return.*' 

§  206.  There  are  numerous  decisions  bearing  upon 
the  subject  of  amendments  of  returns  on  final  process, 
which  may  have  more  or  less  analogy  to  the  subject 


^  Miller  v.  Shackleford,  4  Dana,  264. 

"'  Welsh  V.  Joy,  13  Pick.  477. 

'  Dewar  v.  Spenee,  2  Wharton,  211  ;  Childs  v.  Barrows,  9  Metcalf,  413. 

*  Johnson  v.  Day,  17  Pick.  106. 

^  Smith  V.  Leavitts,  10  Alabama,  92. 

^  Layman  v.  Beam,  6  Wharton,  181. 

15*  [173] 


§  210    EXECUTION  AND  RETURN  OF  ATTACHMENT.  [CH.  VII. 

now  before  us ;  birt  it  is  deemed  advisable  to  consider 
here  only  those  which  refer  to  mesne  process. 

§  207.  In  Mississippi,  it  is  held  to  be  error  to  permit 
a  sheriff  to  amend  his  return,  after  judgment,^  or  after 
the  return  term  of  the  writ,  without  notice  to  the  ad- 
verse party." 

§  208.  In  Virginia,  it  has  been  decided  that  the  court 
ought  to  permit  a  sheriff  to  amend  his  return  upon  a 
writ  of  ad  quod  damnum,  at  any  time  before  judgment 
on  it  ;'^  and  in  Kentucky,  a  like  amendment  was  allowed 
several  years  after  the  writ  was  executed,  there  being 
the  inquest  to  amend  by.* 

§  209.  In  Kentucky,  a  sheriff  may  amend  his  return 
of  an  attachment,  so  as  to  show  that  the  effects  attached 
were  the  property  of  the  defendant,  as  well  before  as 
after  judgment,  and  at  a  subsequent  term;^  and  may 
amend  his  return  on  a  petition  and  summons,  after  a 
writ  of  error  is  sued  out  to  reverse  the  judgment.*^ 

§  210.  In  Massachusetts,  an  amendment  in  one  case 
was  allowed  after  verdict ; '  and  in  another  case,  where 


^  Hughes  V.  Lapice,  5  Smedcs  &  Marshall,  451. 

=  Dorsey  v.  Pierce,  5  Howard  (Miss.)  173;  Williams  v.  Oppelt,  1  Smedcs 
&  Marshall,  550. 

3  Bullitt's  Ex'rs  v.  Winstons,  1  Munford,  2G9  ;  Dawson  v.  Moons,  4  Ibid. 
535  ;  Baird  v.  Rice,  1  Call,  18. 

4  Gay  V.  Caldwell,  Hardin,  63. 

'^  Mason  v.  Anderson,  3  T.  B.  Monroe,  293  ;  Malonc  r.  Samuel,  3  A.  K. 
Marshall,  350. 

«  Irvine  v.  Scobee,  5  Littell,  70. 
'  Johnson  v.  Day,  17  Ticft'lOG. 

[174] 


CH.  til]      execution    and    EETURN    of    ATTACmiENT.  §  213 

the  return  stated  an  attachment  of  property,  and  a  gar- 
nishment, but  omitted  to  state  any  service  upon  the 
defendants,  the  Supreme  Court,  after  a  writ  of  error  was 
sued  out  to  reverse  the  judgment,  continued  the  cause 
until  an  application  could  be  made  to  the  inferior  court 
for  leave  for  the  officer  to  amend  his  return,  intimating 
that  the  inferior  court  had  the  power  to  grant  the 
leave.^  But  after  the  case  had  gone  back  to  the  infe- 
rior court,  which  refused  to  allow^  the  amendment,  the 
Supreme  Court  declined  to  interfere,  because  the  matter 
was  peculiarly  within  the  discretion  of  the  inferior 
court.^ 

§  211.  In  Maryland,  where  a  sheriff  erroneously 
made  a  return  of  cepi  corpus,  upon  a  writ  issued  in  at- 
tachment, he  was  allowed,  six  years  afterwards,  to 
amend  the  return;^ 

§  212.  In  Alabama,  a  return  may  be  amended  after 
demurrer.^ 

§  213.  Where  an  officer  made  a  minute  on  the  writ 
of  the  time  and  mode  of  service,  he  was  permitted,  in 
Massachusetts,  after  he  went  out  of  office,  and  after  the 
case  had  gone  into  the  appellate  court,  to  complete  his 
return  from  his  minutes  on  the  writ.^  But  in  Connecti- 
cut, where  a  sheriff  attached  goods,  which  were  subject 


1  Thatcher  v.  Miller,  11  Mass.  413. 
-  Thatcher  v.  Miller,  13  Mass.  270. 
'  Hutchins  V.  Brown,  4  Harris  &  McHenry,  498. 

*  Moreland  v.  Ruffin,  Minor,  18. 

*  Adams  v.  Robinson,  1  Pick.  461. 

[  175  ] 


§  214  EXECUTION   AND    RETURN    OF   ATTACmiENT.      [CH.  MI. 

to  a  previous  attachment,  and  the  court  out  of  which 
the  process  issued,  allowed  him,  after  he  went  out  of 
office,  to  amend  his  return,  by  adding  to  it  that  he  at- 
tached the  property  subject  to  a  prior  attachment,  it 
was  held  by  the  Supreme  Court  that  the  amendment 
could  not  be  made,  not  only  because  no  notice  to  the 
parties  was  given  of  the  motion  to  amend,  but  because 
the  returning  officer  was  no  longer  in  office.^ 

§  214.  In  all  cases  where  application  is  made  for 
leave  to  amend  a  return,  there  should  be  something  to 
amend  by,  though  this  may  not  be  required  by  every 
court  to  w^hich  such  applications  are  addressed.  In  the 
case  previously  referred  to  in  Massachusetts,  where  the 
cause  was  continued  by  the  Supreme  Court  to  give  time 
for  an  application  to  the  inferior  court  for  leave  to 
amend  the  return,  one  of  the  reasons  assigned  for  not 
interfering  with  the  refusal  of  the  inferior  court  to 
allow  the  amendment,  was,  that  there  was  nothing  to 
amend  by  but  the  affidavit  of  the  officer.  The  court 
said — "at  the  same  term  in  which  a  precept  is  return- 
able, to  correct  a  mistake  or  omission,  may  be  highly 
proper ;  but  for  an  officer  to  undertake,  six  years  after 
a  defective  return,  to  know  with  certainty  the  perform- 
ance of  a  particular  duty,  when  he  is  daily  and  hourly 
performing  similar  duties  upon  different  persons,  is 
more  than  can  be  expected  of  men,  however  strong 
their  memory.  In  the  cases  cited,  wdicre  amendments 
have  been  permitted,  there  was  something  on  the  record. 


1  Wilkic  v.  Hall,  15  Conn.  32. 

[  1V6  ]       t 


CH.  YII.]      EXECUTION   AND    RETUEN    OF   ATTACHMENT.  §  216 

by  wliich  the  correction  could  be  made ;  and  in  such 
cases  there  can  be  no  difficulty."^ 

§  215.  Where  an  officer,  immediately  upon  receiving 
a  writ,  with  directions  to  attach  certain  real  estate  of 
the  debtor,  made  a  memorandum  upon  the  writ  that 
he  attached  accordingly,  stating  the  day  and  month, 
but  afterwards,  by  mistake,  returned  that  he  attached 
on  the  same  day  of  the  succeeding  month,  he  was 
allowed  to  correct  the  error,  there  being  something  to 
amend  by.^  And  an  amendment  v/as  refused,  in  the 
date  of  a  return,  after  a  lapse  of  several  years,  where 
the  officer  made  no  minute  of  his  doings  at  the  time  of 
the  service.^ 

§  216.  In  general,  no  amendment  of  an  officer's  re- 
turn will  be  permitted,  or  allowed  to  have  effect,  when 
such  amendment  would  destroy  or  lessen  the  rights  of 
third  persons,  previously  acquired  hond  fide,  and  without 
notice  by  the  record,  or  otherwise.  Therefore,  where 
an  officer  returned  on  a  writ  of  attachment,  that  he 
had  attached  land  of  the  defendant,  on  the  6th  of  June, 
and  afterwards,  by  leave  of  court,  he  was  permitted  to 
amend  his  return,  by  substituting  March  for  June,  it  was 
held  that  the  amendment  was  not  operative  as  against 
a  mortgage  of  the  land  recorded  in  May,  though  the 
evidence  was  sufficient  to  satisfy  the  court  that  the  at- 


^  Thatcher  v.  Miller,  13  Mass.  270.     And  see  Emerson  v.  Upton,  9  Pick. 
167. 

«  Haven  v.  Snow,  14  Pick.  28  ;  Gay  v.  Caldwell,  Hardin,  63. 

8  Hovey  v.  Wait,  17  Pick.  196  ;  Fairfield  v.  Paine,  23  Maine,  498. 

[177] 


§217         EXECUTION    AND    RETURN    OF    ATTACIBIENT.      [CH.  VII. 

tacliinent  was  le.viecl  in  March,  and  that  the  return,  as 
first  made,  was  a  mistake.^ 

§  217.    But  if  the    party  who  has  acquired  rights 
which  would  be  injuriously  affected  by  the  amendment, 
had  notice,  actual  or  constructive,  that  the  officer  had 
done  his  dutj^,  and  that  there  was  an  omission,  by  mis- 
take, in  his  return,  which,  if  supplied,  would  perfect  the 
officer's  proceedings,  or  if  that  fact  is  clearly  manifest 
on  the  record,  he  cannot  avail  himself  of  the  rule  above 
laid  down.     Thus,  A  sued  out  an  attachment  against  B 
on  the  19th  of  November;  on  the  next  day,  C  likewise 
obtained  an  attachment  against  B.    The  same  attorney 
acted  for  both  plaintiffs,  having  a  full  knowledge  of  all 
the  facts,  and  directing  the  order  of  the  attachments. 
The  sheriff,  in  returning  A's  attachment,  by  mistake, 
dated  the  levy  on  the  19  th  of  Dcccmhcr,  while  he  re- 
turned C's  attachment  as  having  been  levied  on  the 
2^t\\  o?  November ;  thus  giving  the  second  attachment 
priority  over  the  first.    At  the  return  term  of  the  writs, 
the  sheriff  obtained  leave  to  amend  his  return  on  A's 
writ  by  inserting  Novemher  instead  of  Decemler ;  and  it 
was  held  that  this  amendment  was  effective  against  C, 
because  he  had,  through  his  attorney,  constructive  no- 
tice that  A's  attachment  was  anterior  in  time  to  his.^ 


^  Emerson  v.  Upton,  9  Pick.  167.  And  see  Putnam  v.  Hall,  3  Pit-k.  445  ; 
Ilovey  V.  Walt,  17  Ibid.  196  ;  Williams  v.  Brackett,  8  Mass.  240;  Means  v. 
Osgood,  7  Maine,  146  ;  Berry  v.  Spear,  13  Ibid.  187  ;  Bannister  v.  Iliggin- 
son,  15  Ibid.  73;  Gilman  v.  Stetson,  16  Ibid.  124;  Eveleth  v.  Little,  Ibid. 
374  ;  Fairfield  v.  Paine,  23  Ibid.  498 ;  Bowman  v.  Stark,  6  New  Hamp.  459  ; 
Davidson  r.  Cowan,  1  Devcrcux,  304  ;  Ohio  Life  Ins.  kjv.  Co.  v.  Urbana 
Ins.  Co.,  13  Ohio,  220. 

2  Haven  v.  Snow,  14  Pick.  28. 

[178]       . 


en.  VII.]      EXECUTION    AND    RETURN    OF   ATTACHMENT.  §  217 

So,  where  a  writ  of  attachment  was  issued  and  levied 
on  land,  on  the  4th  of  November,  1833,  and  was  ac- 
tually returned  at  the  term  next  ensuing  its  date,  and 
judgment  was  rendered  at  the  June  Term,  1834,  though 
the  sheriff  returned  that  he  had  executed  it  on  the  4th 
of  November,  1834 ;  it  was  held  that  the  sheriff  might 
amend  his  return  according  to  the  fact,  and  that  the 
amendment  should  be  effective  against  a  grantee  of  the 
defendant  under  a  deed  dated  November  26,  1833,  be- 
cause the  record  clearly  showed  the  mistake,  and  no 
one  could  by  possibility  be  misled  or  injured  by  it.^ 


1  Johnson  r.  Day,  17  Pick.  106  ;  Childs  v.  Barrows,  9  Metcalf,  413.     See 
Fairfield  v.  Paine,  23  Maine,  498.' 

[179] 


CHAPTER    VIII. 

EFFECT   AND    OFFICE   OF  AN   ATTACHMENT. 

§  218.  The  mere  issuing  of  an  attacliment  has  no 
force  as  against  the  defendant's  property,  either  with 
reference  to  his  rights,  or  to  those  of  third  persons, 
therein  ;  ^  nor  has  its  lodgement  in  the  hands  of  an  offi- 
cer ;  ^  but  its  effect  is  to  be  dated  from  the  time  of  its 
actual  service.^  And  when  questions  arise  as  to  the 
title  of  property  claimed  through  an  attachment,  and 
the  judgment  and  execution  following  it,  the  rights  so 
acquired  look  back  for  their  inception,  not  to  the  judg- 
ment, but  to  the  attachment."^ 

§  219.  The  levy  of  an  attachment  does  not  change 
the  estate  of  the  defendant  in  the  property  attached  j'"^ 


1  Mears  v.  Winslow,  1  Smedes  &  Marshall,  Cli'y  R.  449 ;  Williamson  r. 
Bowie,  6  Munford,  176  ;  Wallace  v.  Forrest,  2  Harris  &  McHenry,  2G1. 

2  Crowninslueld  v.  Strobel,  2  Brevard,  80;  Robertson  i'.  Forrest,  Ibid. 
466  ;  Betlmnc  v.  Gibson,  Ibid.  501  ;  Crocker  v.  RadclifTc,  3  Brevard,  23. 

'^  Ibid.  Gates  v.  Buslinell,  9  Conn.  530 ;  Sewell  v.  Savage,  1  B.  Monroe, 
2G0  ;  Nutter  v.  Connett,  3  B.  Monroe,  199  ;  Fitch  v.  Waite,  5  Conn.  117. 

*  Stephen  v.  Thayer,  2  Bay,  272 ;  Am.  Ex.  Bank  v.  Morris  Canal  &  Bank- 
ing Co.,  6  liill,  362  ;  Martin  v.  Drj-den,  6  Illinois  (1  Gilman)  187;  Redus  r. 
Woflbrd,  4  Smedes  &  Marshall,  579. 

5  Bigelow  r.  W' illson,  1  Tick.  485  ;  Blake  v.  Shaw,  7  INIass.  505  ;  Starr  v. 
Moore,  3  INIcLcan,  354  ;  Ticrnan  r.  Murrah,  1  Robinson  (La.)  443;  Crocker 
V.  Pierce,  31  ]\Iainc,  177  ;*^^heeler  v.  Nichols,  32  Ibid.  233. 

[180] 


CH.  YIII.]         EFFECT    AND    OFFICE    OF   ATTACHMENT.  §  220 

though,  to  the  extent  of  its  lien,  his  absolute  property 
is  diminished.^  Nor  does  it  take  away  his  power  of 
transfer,  either  absolutely  or  in  mortgage,  subject  to 
the  lien  of  the  attachment.^  Nor  does  the  attaching 
plaintiff  acquire  any  property  thereby.'^  Therefore, 
where  an  attaching  creditor,  after  obtaining  judgment 
in  the  action,  demanded  the  attached  goods  of  the  offi- 
cer, who  refused  to  deliver  them,  and  the  creditor  there- 
upon sued  him  ;  it  was  decided  that  it  was  not  the  duty 
of  the  officer,  but  would  have  been  contrary  to  his  duty, 
to  make  such  a  delivery  ;  that  the  goods  were  in  the 
legal  custody  of  the  officer,  who  was  accountable  for 
them  ;  and  that  the  general  property  in  them  was  not 
changed  until  a  levy  and  sale  by  execution.^ 

§  220.  It  is  a  well  settled  principle,  that  an  attach- 
ing creditor  can  acquire  through  his  attachment  no 
higher  or  better  rights  to  the  property  or  assets  at- 
tached, than  the  defendant  had  irJien  the  attachment  took 
2)lace,  unless  he  can  show  some  fraud  or  collusion  by 
which  his  rights  are  impaired.  No  interest  subse- 
quently acquired  by  the  defendant  in  the  attached 
property  will  be  affected  by  the  attachment.^  If  the 
attached  property,  when  attached,  is  subject  to  a  lien, 
lonci  fide  placed  upon  it  by  the   defendant,  that  lien 


1  Grosrenor  v.  Gold,  9  Mass.  209. 

-  Bigelow  V.  Willson,  1  Pick.  485  ;  Denny  v.  Willard,  11  Ibid.  519  ;  Fetty- 
place  V.  Dutch,  13  Ibid.  388;  Arnold  v.  Brown,  24  Ibid.  89;  Warner  v. 
Everett,  7  B.  Monroe,  262  ;  Wheeler  v.  Nichols,  32  Maine,  233. 

3  Bigelow  V.  AVilson,  1  Pick.  485 ;  Crocker  r.  Kadcliffe,  3  Brevard,  23  ; 
Willing  V.  Bleeker,  2  Sergeant  &  Rawle,  221 ;  Owings  v.  Norwood,  2  Harris 
&  Johnson,  96. 

*■  Blake  v.  Shaw,  7  Mass.  505. 

*  Crocker  r.  Pierce, '31  Maine,  177. 

16  [181] 


§  222  EFFECT   AND    OFFICE    OF   ATTACHMENT.         [CH.  VIII. 

must    be    respected,  and   the    attachment   postponed 
to  it.i 


§  221.  When  an  attachment  is  served,  either  by  levy 
or  garnishment,  a  lien  on  the  property  or  credits  is 
created,  which  nothing  subsequent  can  destroy,  but  the 
dissolution  of  the  attachment.^  Though,  as  we  have 
just  seen,  the  defendant's  power  of  alienation,  subject 
to  attachment,  is  not  impaired,  yet  no  subsequent  act 
of  that  description  on  his  part  can  defeat  the  attach- 
ment."'^ 

§  222.  This  lien  extends  only  to  the  property  which 
has  been  actually  subjected  to  attachment.  It  cannot 
constructively  reach  the  property  of  one  who  has  been 
summoned  as  garnishee.  Therefore,  where  one  who 
had  been  so  summoned  died,  pending  the  proceedings 
against  him,  and  his  administrator  was  made  a  party  to 
the  suit  as  his  representative,  and  judgment  was  ren- 
dered against  the  administrator,  on  account  of  a  debt 
due  from  the  intestate  to  the  attachment  defendant,  it 
was  held  that  this  judgment  was  not  entitled  to  priority 
over  any  other  debts  of  the  intestate,  as  the  attach- 
ment was  no  lien  upon  his  effects,  and  the  plaintiff 


^  Nathan  v.  Giles,  5  Taunton,  558,  576;  Baillio  v.  Poisset,  8  Martin,  x.  s. 
337;  Frazier  v.  Willcox,  4  Robinson  (La.)  517;  Peek  v.  Webber,  7  Howard 
(Mi.)  G58  ;  Parker  v.  Farr,  2  Browne,  331. 

-  Go9re  V.  IM'Daniel,  1  M'Cord,  480  ;  Peck  v.  Webber,  7  Howard  (Mi.) 
C58;  Smiths.  Bradstreet,  16  Pick.  264;  The  People  v.  Cameron,  7  Illinois 
(2  Oilman)  468  ;  Vinson  v.  Huddleston,  Ccoke,  254 ;  Van  Loan  v.  Kline, 
10  Johnson,  129  ;  Desha  v.  Bakei:,  3  Arkansas,  509. 

^  M'Bride  v.  Floyd,  2  Bailey,  209  ;  JIarvey  v.  Grymcs,  8  Martin,  395  ; 
Bach  I'.  Goodrich,  9  Robinson  (La.)  391 ;  Franklin  Fire  Ins.  Co.  v.  West,  8 
Watts  &  Sergeant,  350.        •*' 

[182] 


en.  Till.]         EFFECT    AND    OFFICE    OF   ATTACHIMENT.  §  224 

could  acquire  no  greater  interest  under  the  attachment 
proceedings  in  the  debt  of  the  garnishee  to  the  defend- 
ant, than  the  defendant  himself  would  have  had  if  no 
attachment  had  been  made.^ 

§  223.  The  lien  of  an  attachment  is  not  limited  to 
the  amount  for  which  the  writ  commands  the  officer  to 
attach ;  but  it  is  commensurate  with  the  amount  of  the 
judgment  and  costs,  though  that  be  greater  than  the 
amount  which  the  precept  of  the  writ  required  the 
officer  to  secure." 

§  224.  An  attachment  takes  precedence  of  a  junior 
execution ;  ^  and  a  purchaser  of  land  under  an  attach- 
ment will  prevail  against  a  purchaser  under  a  judgment 
obtained  after  the  levy  of  the  attachment,  though  the 
judgment  in  the  attachment  suit  was  subsequent  to  the 
other.*  The  strength  of  this  doctrine  was  illustrated 
in  a  recent  case  in  Pennsylvania,  under  a  statute  which 
declared  that  "  Every  writ  of  attachment  executed  on 
real  estate,  shall  bind  the  same  against  purchasers  and 
mortgagees^  On  the  18th  of  January,  1847,  an  attach- 
ment was  executed  on  real  estate.  In  November, 
1848,  judgment  was  obtained  in  the  action.  In  the 
mean  time,  several  other  creditors  of  the  defendant 
sued  out  attachments,  and  caused  them  to  be  executed 
on  the  same  real  estate ;  and  in  all  those  cases  the 

^  Parker  tr.  Farr,  2  Browne,  331. 

*  Searle  v.  Preston,  33  Maine,  214. 

^  Goore  i".  M'Daniel,  1  M'Cord,  480;  Yan  Loan  v.  Kline,  10  Johnson, 
129. 

*  Redus  r.  WofTord,  4  Smedes  &  Marshall,  579  ;  Am.  Ex.  Bank  v.  Morris 
Canal  and  Banking  Co.  6  Hill,  362 ;  Martin  v.  Drydon,  6  Illinois  (1  Gilman) 
187. 

[183] 


§  226  EFFECT   AND    OFFICE    OF   ATTACHMENT.         [CH.  YIII. 

defendant  confessed  judgments  in  April,  May,  and  June, 
1848.  The  plaintiffs  in  these  judgments  claimed  pri- 
ority of  the  first  attaching  creditor,  because,  though 
their  attachments  were  later  than  his,  their  judgments 
were  earlier;  and  it  was  contended  on  their  behalf 
that  the  lien  of  the  first  attachment  bound  the  prop- 
erty only  as  against  subsequent  imrcliasers  and  mortga- 
gees ;  but  Gibson,  C.  J.,  in  delivering  the  opinion  of  the 
court,  held  that  though  a  judgment  creditor  was  neither 
a  purchaser  nor  a  mortgagee,  and  therefore  not  within 
the  letter  of  the  law,  yet  he  was  within  its  equity ;  and 
the  court  established  the  jDriority  of  the  first  attach- 
ment.^ 

§  225.  Unless  otherwise  directed  by  statutory  pro- 
vision, the  first  attachment  served  is  entitled  to  priority 
in  regard  to  the  effects,  over  subsequent  attachments.^ 

§  226.  That  the  service  of  an  attachment  constitutes 
a  lien,  seems  to  have  been  generally  conceded,  until 
the  late  Justice  Story,  in  the  course  of  the  administra- 
tion of  the  Bankrupt  Act  of  1841,  expressed  a  different 
view.  That  distinguished  jurist,  in  an  elaborate  opin- 
ion, held  that  an  attachment  on  mesne  process  is  not  a 
lien,  either  in  the  sense  of  the  common  law,  or  of  the 
maritime  law,  or  of  equity ;  but  only  a  contingent  and 
conditional  charge,  until  the  judgment  and  levy.^     This 


1  Schacklett  &  Clyde's  Appeal,  14  Penn.  State,  326. 

-  Robertson  r.  Forrest,  2  Brevard,  4GG  ;  Crowninshleld  v.  Strobcl,  Ibid. 
80;  Emerson  v.  Fox,  3  Louisiana,  183;  Atlas  Bank  v.  Naliant  Bank,  23 
Pick.  488;  "Wallace  v.  Forrest,  2  Harris  &  M'llenry,  261;  Talbot  v.  Hard- 
ing, 10  Mssouri,  350;  Farmers  Bank  v.  Day,  6  Grattan,  360. 

'  Foster's  case,  2  Story,  l^l ;  Bellows  &  Peck's  case,  3  Ibid.  428. 

[184] 


CH.  VIII.]        EFFECT    AND    OFFICE    OF   ATTACHMENT.  §  226 

opinion  was  subsequently  sanctioned  and  adopted  by 
the  Supreme  Court  of  Louisiana/  while  against  it,  in 
cases  arising  under  the  same  act,  we  find  the  judg- 
ments of  the  Supreme  Courts  of  Massachusetts,^  New 
Hampshire,^  New  Jersey,^  and  Mississippi,^  of  the  Dis- 
trict Court  of  the  United  States  for  Vermont,*^  and  of 
the  late  Justice  Thompson,  of  the  Supreme  Court  of  the 
United  States ;  ^  and,  under  the  General  Bankrupt  Act 
of  1800,  that  of  the  Supreme  Court  of  Connecticut.^ 
At  least  three  of  these  judgments  — those  in  Massachu- 
setts, New  Hampshire,  and  New  Jersey  — were  an 
immediate  result  of  Judge  Story's  ruling,  and  by  each 
of  those  courts  his  opinion  was  fully  and  very  ably  re- 
viewed. When  to  the  adverse  opinions,  we  add  those 
of  the  several  State  courts  previously  referred  to  in 
this  chapter,  we  can  have  no  hesitation  in  regarding 
the  learned  judge's  views  as  overborne  by  the  weight 
of  authority. 


^  Fisher  v.  Vose,  3  Eobinson  (La.)  457. 
2  Davenport  v.  Tilton,  10  Metcalf,  320. 
2  Kittredge  v.  Warren,  14  New  Hamp.  509. 
*  Vreeland  v.  Brown,  1  Zabriskie,  214. 
5  Wells  V.  Brander,  10  Smedes  &  Marshall,  348. 

«  Downer  v.  Brackett,  5  Law  Reporter,  392;  Rowell's  case,  6  Ibid.  300. 
The  same  cases  are  reported  in  21  Vermont,  599  and  620. 
^  Haughton  v.  Eustls,  5  Law  Reporter,  505. 
8  Ingraham  v.  Phillips,  1  Day,  117. 

16*  [185] 


CHAPTER  IX. 


ATTACHMENT  OF  REAL  ESTATE. 


§  227.  At  the  foundation  of  all  attachments  of  tan- 
gible property,  whether  real  or  personal,  is  the  princi- 
ple, that,  as  the  attachment  is  intended  merely  to 
secure  and  hold  the  property  until  it  can,  at  the  termi- 
nation of  the  suit,  be  sold  under  execution,  so  nothing 
which  is  not  subject  to  sale  under  execution  can  be 
attached.  Therefore,  the  extent  to  which  interests  in 
real  estate  may  be  attached,  is  determined  by  the  writ- 
ten law,  or  established  jurisprudence  of  each  State. 

§  228.  Another  principle  affects  with  peculiar  fitness 
attachments  of  real  estate,  —  that  the  attachment  can 
operate  only  upon  the  right  of  the  defendant  existing 
when  it  is  made.  No  interest  which  he  subsequently 
acquires  is  reached  by  it.  This  principle  was  applied 
in  the  following  case.  The  Commonwealth  of  Massa- 
chusetts, in  1832,  gave  a  bond  for  title  to  real  estate 
to  P.,  and  in  August,  1836,  executed  to  him  a  deed  in 
pursuance  of  the  bond.  Prior  to  the  last-named  date, 
P.  conveyed  by  deed  of  warranty  an  interest  in  the 
lands,  to  parties  from  whom,  by  intermediate  convey- 
ances, that  interest  came  to  be  vested  in  S.  In  1835, 
S.  conveyed  by  warranty  deed  to  C,  but  the  deed  was 
not  recorded  till  183,9.  In  May,  1836,  that  interest  was 
[186] 


CH.  IX.]  ATTACroiEN'T    OF    REAL   ESTATE.  §  228 

attached  as  the  property  of  S.,  and  sold  in  1841,  under 
the  execution  in  the  attachment  suit,  and  bought  by 
P.,  the  original  obligee  in  the  bond  from  Massachusetts. 
The  question  of  title  came  up  in  a  suit  by  C.  against 
P.  for  a  proportionate  part  of  the  value  of  timber  cut 
by  the  latter  from  the  land.  On  behalf  of  C.  it  was 
claimed  that  the  title  made  by  Massachusetts  in  1836, 
enured  to  C.'s  benefit,  by  virtue  of  the  various  convey- 
ances with  warranty,  beginning  with  that  from  P.  and 
ending  with  that  from  S.  to  C.  On  the  other  hand,  it 
was  urged  in  support  of  P.'s  title  that  the  attachment 
through  which  he  claimed,  having  been  laid  on  the 
land  before  the  deed  from  S.  to  C.  was  recorded,  and 
therefore  before  it  could  take  effect  against  the  attach- 
ment plaintiffs,  by  its  registry,  gave  to  the  attachment 
plaintiffs  the  same  title  which  would  have  enured  to 
them,  by  the  doctrine  of  estoppel,  if  they  had  held 
nnder  a  deed  with  covenants  of  warranty  recorded  at 
the  time  of  the  attachment,  and  that  their  right  passed 
to  P.  This  claim  on  behalf  of  P.  was  repudiated  by 
the  court  in  these  terms :  "  The  purpose  of  an  attach- 
ment upon  mesne  process,  is  simply  to  secure  to  the 
creditor  the  property  which  the  debtor  has  at  the  time 
it  is  made,  so  that  it  may  be  seized  and  levied  upon  in 
satisfaction  of  the  debt,  after  judgment  and  execution 
may  be  obtained.  The  title  to  the  property  remains 
unchanged  by  the  attachment. 

"An  attachment  can  operate  only  upon  the  right  of 
the  debtor  existing  at  the  time  it  is  made.  No  interest 
subsequently  acquired  by  the  debtor  can  in  any  man- 
ner be  affected  by  the  return  thereof,  when  none  was 
in  him  at  the  time. 

"  We  have  been  directed  to  no  case,  and  it  is  believed 

[  187  ] 


^229  ATTACHMENT    OF   REAL    ESTATE.  [cil.  IX. 

that  none  can  be  found,  where  a  title  has  been  held  to 
enure  to  a  creditor  from  an  attachment  upon  a  writ  by 
way  of  estojDpel,  as  from  a  deed,  with  covenants  of  war- 
ranty, where  there  is  no  title  of  the  debtor,  upon  which 
the  attachment  can  operate.  Upon  the  principle  con- 
tended for,  it  would  be  in  the  power  of  a  creditor,  by  a 
return  of  an  attachment  upon  mesne  process,  to  secure 
to  himself  any  interest  in  real  estate,  which  his  debtor 
might  obtain  subsequently  thereto,  if  the  interest  should 
be  attachable. 

"  At  the  time  the  attachment  was  made,  S.  had  no 
title  whatever  in  the  land,  nor  had  he  seizin  or  posses- 
sion. If  he  had  made  no  conveyance,  till  the  title  had 
passed  from  the  Commonwealth  of  Massachusetts  to  P., 
the  attachment  would  be  entirely  without  effect  against 
him,  but  the  title  of  the  Commonwealth  would  enure  to 
his  benefit  alone.  The  levy  of  an  execution  at  the 
same  time  would  be  a  nullity,  and  the  return  of  full  sat- 
isfaction thereon  would  not  prevent  the  issue  of  a  new 
execution  npon  scire  facias.  When  the  levy  was  made 
upon  the  execution  obtained  from  the  judgment  recov- 
ered, the  title  had  passed  from  the  Commonwealth  of 
Massachusetts  to  P.,  and  the  same  enured  to  S.,  and  in- 
stantly to  C."  1 

§  229.  The  question  has  frequently  arisen,  whether  a 
mortgagee  of  real  estate  has  an  attachable  interest 
therein.  It  has  been  held  by  courts  in  several  States, 
thaty  before  an  entry  for  condition  broken,  with  a  view 
to  foreclosure,  such  interest  cannot  be  taken  in  satisfic- 
tion  of  a  judgment  and  execution  against  him.     This 

^  Croclier  I'.  Pierce,  31  Maine,  177. 

[188] 


CH.  IX.]  ATTACHMENT    OF   KEAL    ESTATE.  §  230 

principle  has  been  so  frequently  discussed  and  re- 
affirmed, that  it  may  be  considered  fully  established. 
Whether  his  interest  is  so  changed  by  such  entry,  that 
it  becomes  attachable,  is  a  question,  which  does  not  ap- 
pear to  have  been  distinctly  presented  for  adjudication 
until  recently  in  Maine.  In  several  opinions,  courts 
had  carefully  limited  the  doctrine  to  the  cases  before 
them,  where  there  had  been  no  entry  for  a  breach  of 
the  condition,  or  when  the  mortgagor  was  in  posses- 
sion ;  and  in  others,  they  intimated,  in  terms  far  from 
implying  doubts,  that  the  respective  rights  of  the  par- 
ties to  a  mortgage  were  not  so  materially  changed  by 
the  entry  of  the  mortgagee,  that  his  creditor  could  bet- 
ter avail  himself  of  his  interest  afterwards  than  before. 

§  230.  Before  the  Supreme  Court  of  Maine,  however, 
the  question  was  broadly  presented,  and  after  a  full  and 
careful  examination,  the  conclusion  of  that  tribunal  was 
summed  up  in  the  following  terms :  "  The  result  is  to 
be  drawn  from  the  principles  which  we  have  consid- 
ered, that  the  breach  of  the  condition  in  a  mortgage  in 
no  respect  changes  the  nature  of  the  estate  in  the  re- 
spective parties.  Notwithstanding  such  breach,  the 
morts-affor  is  still  considered  the  owner  against  all  but 
the  mortgagee ;  he  may  sell  and  convey  the  fee ;  may 
lease  the  land,  if  in  possession ;  and  in  every  respect 
deal  with  it  as  his  own.  The  equity  of  redemption  re- 
mains little,  if  at  all,  affected  by  an  entry  of  the  mort- 
gagee, after  breach  of  the  condition ;  the  rights  of  the 
mortgagor  are  not  essentially  impaired  till  foreclosure. 
It  may  be  taken  on  execution  against  the  owner  and 
disposed  of  as  well  after  as  before  such  entry ;  and  the 
mterest  acquired  by  the  creditor  differs  in  no  respect 

'       [189] 


§  230  ATTACDMENT    OF   EEAL    ESTATE.  [CH.  IX. 

from  that  which  he  would  have  obtained,  if  made  before 
breach  of  condition.  Tlie  mortgagee,  by  his  entry,  ac- 
quires no  absolute  interest  presently,  which  he  would 
not  have  done  by  taking  possession  before  the  breach 
of  the  condition.  In  both  cases  he  would  hold  the  land 
subject  to  redemption,  and  be  obliged  to  account  strictly 
for  the  net  value  of  the  rents  and  profits ;  if  they  should 
be  equal  to  the  amount  of  the  debt  secured  by  the 
mortgage,  before  the  expiration  of  the  time  necessary 
to  work  a  foreclosure,  the  mortgage  would  be  discharged 
thereby  as  effectually  as  -by  any  other  mode  of  pay- 
ment. In  the  view  of  a  court  of  equity,  the  rents  and 
profits  are  incidents  de  jure  to  the  ownership  of  the 
equity  of  redemption.  In  no  sense  can  they  be  the 
property  of  the  mortgagee,  till  foreclosure.  He  surren- 
ders no  rights  which  he  before  possessed  by  the  entry. 
In  the  language  of  Chief  Justice  Shaw,  in  Fay  v.  Clwwj} 
'  the  entry  does  little  or  nothing  to  change  the  relative 
rights  of  the  parties.  It  fixes  the  commencement  of 
three  years,  the  lapse  of  which,  by  force  of  law,  if  the 
estate  be  not  redeemed,  will  work  a  foreclosure.'  Until 
that  takes  place,  the  mortgage  is  as  before,  a  security 
for  the  debt,  and  remains  the  personal  property  of  the 
mortgagee,  passing  on  his  death  to  the  executor  and 
not  to  the  heir.  No  new  property  is  added  to  it  by  en- 
try, which  did  not  previously  belong  to  it,  so  as  to 
make  it  liable  for  the  debts  of  the  mortgagee.  All  the 
difficulties  and  inconveniences,  which  would  result  from 
a  levy  of  an  execution  upon  such  an  estate,  before  entry, 
would  exist  in  even  a  greater  degree  afterwards.'  In 
addition  to  the  fact,  that  an  execution  might  require 

►'     M4  rick.  399. 

[190] 


CH.  IX.]  ATTACHMENT    OF    REAL   ESTATE.  §  231 

but  a  small  part  of  the  land  to  satisfy  it,  and  several 
levies  might  be  made  by  several  persons,  which  would 
be  an  embarrassment  to  the  mortgagor,  or  his  represen- 
tative, if  they  should  wish  to  redeem,  there  would  be 
the  greater  difficulty  arising  from  the  rents  and  profits, 
for  the  value  of  which  the  latter  would  be  entitled.  In 
such  a  case,  who  would  be  held  to  account  for  them,  a 
part  having  been  received  by  the  mortgagee,  and  a 
part  by  several  creditors,  who  might  claim  to  succeed 
to  his  rights  as  the  mortgagee  ?  Against  whom  must 
the  mortgagor  bring  his  bill  in  equity,  that  he  may  be 
restored  to  his  estate  ?  Was  it  supposed  that  by  the 
acts  of  strangers  he  should  be  turned  from  the  plain 
and  straight  course  of  seeking  his  equities  from  the 
morto;ao-ee  and  his  assigns  ?  To  whom  must  the  tender 
be  made  to  entitle  the  owner  of  the  equity  of  redemp- 
tion to  the  rights  secured  to  him  by  law  ?  But  a  diffi- 
culty greater  than  inconveniences  presents  itself  as  an 
insurmountable  obstacle  to  the  levy  upon  a  mortgagee's 
right  before  foreclosure.  The  mortgage  is  a  '  pledge,' 
'  a  chose  in  action^  '•  an  accident '  until  foreclosure.  Such 
cannot  be  taken  and  sold  on  execution,  unless  by  ex- 
press statute  provision,  much  less  if  possible,  can  it  be 
the  subject  of  levy  by  a  set-off. 

"  If  the  interest  of  a  mortgagee  cannot  be  taken  in 
satisfaction  of  an  execution,  it  cannot  be  the  subject  of 
attachment  upon  mesne  process.  No  attachment  can  be 
made,  where  there  is  no  right  of  the  debtor  which  is 
attachable."  -^ 

§  231.   The  requisites  of  an  attachment  of  real  estate 


^  Smith  I'.  People's  Bank,  24  Maine,  185. 

[191] 


§  232  ATTACHMENT    OF   REAL   ESTATE.  [CH.  IX. 

are  generally  determined  by  statute.  Where,  however, 
that  is  not  the  case,  the  rule  which  has  obtained  in 
Maine  and  Massachusetts  would  probably  be  received 
and  applied  —  that  it  is  not  necessary  for  the  officer  to 
go  upon  the  land,  or  into  its  vicinity,  or  see  it,  or  do 
any  other  act  than  make  return  upon  the  writ  that  he 
had  attached  it.-^ 

§  232.  In  making  such  return,  a  distinction  is  taken 
between  the  levy  of  an  .attachment,  which  is  a  mere  lien 
on  the  property,  and  the  levy  of  an  execution,  by  which, 
when  carried  to  a  sale,  the  defendant's  property  is  di- 
vested. In  the  latter  case  greater  precision  is  required 
than  in  the  former.  Hence  it  has  been  considered,  in 
the  case  of  an  attachment,  that  any  words  which  clearly 
designate  and  comprehend  the  property  attached,  are 
sufficient.^  In  such  case,  too,  the  generality  of  the  de- 
scription makes  no  difference,  if  it  be  sufficiently  intel- 
ligible to  fix  the  lien  of  the  process.  Id  cerium  est  quod 
cerium  rcddl  j'fotesi,  and,  therefore,  if  the  land  be  at  all 
intelligibly  indicated,  the  application  of  this  principle 
will  remove  objections  that  might  exist  on  the  score  of 
imperfection  in  the  description.'^  It  has,  therefore,  been 
held  that  a  return  of  an  attachment  of  the  defendant's 
interest  in  the  flirm  he  lives  on,  is  sufficient.'^  So,  an 
attachment  of  all  the  defendant's  interest  in  "  a  certain 
parcel  of  land  situate  on  Pleasant  street  in  Boston,"  will 
suffice,  if  the   defendant  was  interested  in    only    one 

^  Crosby  iK  Allyn,  5  Maine,  453 ;  Perrin  v.  Leverett,  13  Mass.  128;  Tay- 
lor v.  Mixter,  11  Pick.  341. 

2  Taylor  v.  Mixter,  11  Pick.  341. 
'  Crosby  ??.  Allyn,  5  Maine,  453. 
^  Howard  r.  Daniels,  2  JS^  Ilamp.  137;  Taylor  v.  Mixter,  11  Pick.  341. 

[192] 


CH.  IX.]  ATTACHMENT    OF   EEAL    ESTATE.  §  233 

parcel  on  that  street.^  And  where  an  officer  returned 
that  he  had  "  attached  the  homestead  farm  of  the  de- 
fendant, containing  about  thirty  acres,  more  or  less ; " 
it  was  held  that  this  was  a  sufficient  description  of  the 
farm,  although  in  fact  it  contained  about  150  acres; 
the  statement  of  the  number  of  acres  being  rejected  as 
a  mistake  in  the  officer,  or  as  repugnant  to  the  more 
general  description.^  And  where  -an  officer  returned 
an  attachment  of  land  supposed  to  belong  to  the  defen- 
dant, the  qualifying  term  "  supposed  "  was  held  not  to 
impair  the  effect  of  the  attachment,  when  the  land  was 
in  fact  the  defendant's.^ 

§  233.  The  effect  of  an  attachment  of  real  estate  is, 
to  give  the  plaintiff  a  lien  upon  the  property  from  the 
date  of  the  service  of  the  writ.  By  the  act  of  attaching 
no  estate  passes  to  the  plaintiff,"^  nor  is  the  interest  or 
the  possession  of  the  defendant  divested,  nor  does  the 
officer  or  plaintiff  acquire  any  right  to  take  the  issues 
or  profits.  It  constitutes  a  real  lien,  which  caw  be  made 
available  to  the  plaintiff  only  upon  condition  that  he 
recover  a  judgment  in  the  suit,  and  proceed  according 
to  the  existing  rules  of  law  to  subject  the  property  to 
sale  under  execution.^  And  this  lien  has  been  held  to 
be  as  specific  as  if  acquired  by  the  voluntary  act  of  the 
debtor,  and,  in  the  case  in  hand,  was  considered  to  stand 
on  as  high  equitable  ground  as  a  mortgage.^     And  in 


^  Whitaker  v.  Sumner,  9  Pick.  308 ;  Lambard  v.  Pike,  33  Maine,  141. 

-  Bacon  v.  Leonard,  4  Pick.  277. 

^  Bannister  v.  Higginson,  15  Maine,  73. 

*  Lyon  r.  Sanford,  5  Conn.  544. 

5  Taylor  v.  Mixter,  11.  Pick.  341. 

®  Carter  i'.  Champion,  8  Conn.  549. 

17  [193] 


§  235  ATTACHMENT    OF    REAL    ESTATE.  [CH.  IX. 

another  case,  where  a  debtor's  equity  of  redemption  of 
mortgaged  land  was  attached,  it  was  decided,  that  the 
attachment  created  a  lien  which  entitled  the  plaintiff 
to  redeem,  and  that  a  decree  of  foreclosure  on  a  bill 
brought  subsequent  to  the  service  of  the  attachment, 
did  not  affect  the  rights  of  the  attaching  creditor,  unless 
he  were  made  a  party  to  the  suit.^ 

§  234.  The  right  to  attach  real  estate  extends  as 
well  to  undivided  interests  as  to  interests,  in  severalty. 
Therefore,  where  land  descended  to  several  children, 
who  made  partition  of  it  among  themselves  by  deed, 
and  a  creditor  of  one  of  the  children,  not  having  either 
actual  or  constructive  notice  of  the  partition,  attached 
all  his  debtor's  undivided  share  in  the  estate,  it  was  held 
that  the  attachment  created  a  lien  which  was  not  de- 
feated by  the  partition.^  And  in  a  case  where  an  at- 
tachment was  laid  on  a  debtor's  undivided  interest  in 
real  estate,  and,  pending  the  attachment,  a  partition  of 
the  land  -was  had,  and  the  debtor's  purparty  set  off"  to 
him  in  severalty,  and  the  execution  in  the  attachment 
suit  was  levied  on  the  part  so  set  off,  it  was  decided 
that  the  lien  of  the  attachment  continued,  notwith- 
standing the  partition,  and  that  the  execution  was 
properly  levied  on  the  several  property.^ 

§  235.  The  time  when  an  attachment  of  real  estate 
is  actually  effected,  might,  in  many  instances,  be  of 
much  importance.     It  would  seem  to  be  an  undoubted 


^  Lyon  V.  Sanford,  5  Conn.  544. 
*  M'Mechan  v.  Griffing,  9  Pick.  5S7. 
^  Crosby  v.  Allyn,  5  Maine,  453. 

[194] 


CH.  IX.]  ATTACHMENT    OF   REAL   ESTATE.  §  235 

principle,  that  such  attachment  would  have  no  force 
until  completed  according  to  the  existing  statutory  re- 
quirements.    This  view  is  sustained  by  a  case  in  New 
Hampshire,  which  arose  under  the  statute  of  that  State, 
requiring  a  copy  of  the  original  writ  and  "return  to  be 
left  with  the  town  clerk,  in  order  to  constitute  an  at- 
tachment.    A.  conveyed  to  B.  certain  real  estate,  on 
the  10th  day  of  May,  and  the  deed  was  recorded  on 
the  13th  day  of  that  month.     On  the  11th  day  of  the 
same  month  the  premises  were  attached  under  a  writ 
issued  against  A.  and  on  the  same  day  the  sheriff  left 
with  the  town  clerk  a  copy  of  the  writ  and  his  return 
thereon.     Some  time  after  the  deed  from  A.  to  B.  was 
recorded,  the  officer  who  served  the  attachment  ob- 
tained access  to  tlie  files  of  the  town  clerk,  and  without 
the  knowledge  of  either  party,  altered  the  copy  of  his 
return  left  there,  and  having  made  a  similar  alteration 
in  his  return  upon  the  original  writ,  caused  the  writ  to 
be  returned.     It  was  upon  this  amended  return  that  the 
real  estate  was  afterwards  subjected  to  execution,  and 
the  purchaser  under  the  execution' was  brought  in  con- 
flict with  the  grantee  in  the  deed.     The  court  was  of 
opinion  that  no  valid  attachment  was  made  until  the 
amended  copy  of  the  return  was  left  with  the  town 
clerk,  and  as  that  took  place  some  time  after  the  deed 
was  recorded,  the  grantee  in  the  deed  was  entitled  to 
hold  the  land.^ 

^  Cogswell  V.  Mason,  9  Kew  Hamp.  48. 

[195] 


CHAPTER  X. 

1 

OF  ATTACHMENT  OF  PERSONAL  PROPERTY. 

§  236.  U:mER  this  head  will  be  considered — I.  What 
interests  in,  and  descriptions  of,  personal  property  may 
be  attached ;  and  II.  The  requisites  of  a  valid  attach- 
ment of  personalty. 

§  237.  I.  What  interests  in,  and  descriptions  of,  personal 
property/  may  he  attached.  The  first  general  proposition 
on  this  point  is,  that,  as  the  whole  office  of  an  attach- 
ment is  to  secure  and  hold  property,  until,  at  the  ter- 
mination of  the  suit,  it  can  be  subjected  to  execution, 
any  property  which  cannot  be  sold  under  execution 
cannot  be  attached.^  Of  course  the  correlative  follows, 
that  whatever  may  be  sold  under  execution  may  be 
attached.^  Money  may  be  attached  in  specie^  and  may 
be  taken  from  the  defendant's  possession,  if  the  officer 
can  take  it  without  violating  the  defendant's  personal 


1  Pierce  v.  Jackson,  6  Mass.  242 ;  Parks  v.  Cushman,  9  Vermont,  320 ;  llal- 
scy  r.  Whitney,  4  Mason,  20G  ;  Davis  v.  Garrett,  3  Iredell,  459. 

"^  Handy  v.  Dobbin,  12  Johns.  220;  Spencer  v.  Blaisdell,  4  New  Ilamp. 
198.     . 

»  Turner  v.  Fendall,  1  Cranch,  117  ;  Sheldon  v.  Root,  IG  Pick.  5G7  ;  Handy 
V.  Dobbin,  12  Johns.  220. 

[  loe  ] 


CII.  X.]  ATTACHMENT    OF   PERSONAL    PROPERTY.  §  238 

security.^     Bank  notes  also  may  be  attached,-  and  so  it 
is  said  may  treasury  notes  of  the  United  States.^ 

§  238.  The  next  general  proposition,  and  one  which 
bears  in  many  directions,  is,  that  an  attaching  creditor 
can  acquire  no  greater  right  in  attached  property  than 
the  defendant  had  at  the  time  of  the  attachment.  If, 
therefore,  the  property  be  in  such  a  situation  that  the 
defendant  has  lost  his  power  over  it,  or  has  not  yet  ac- 
quired such  interest  in  or  power  over  it,  as  to  permit 
him  to  dispose  of  it  adversely  to  others,  it  cannot  be 
attached  for  his  debt."^  Thus,  a  chattel  pawned  or 
mortgaged  is  not  attachable  in  an  action  against  the 
pawner  or  mortgagor ;  ^  and  the  pawnee  may  maintain 
trespass  against  an  officer  attaching  such  chattel,  and 
recover  the  whole  value  in  damages,  though  it  was 
pledged  for  less ;  for  he  is  answerable  for  the  excess  to 
the  person  who  has  the  general  property.^  So'  goods 
upon  which  freight  is  due,  cannot  be  attached,  without 
paying  the  freight;'^  nor  property  in  the  hands  of  a 
bailee  for  hire,  under  an  attachment  against  the  bailor, 
during  the  term  of  the  bailment.^  So  where  property 
has  been  consigned  to  a  factor,  entitled  to  a  privilege 

^  Prentiss  v.  Bliss,  4  Vermont,  513. 

"  Spencer  v.  Blaisdell,  4  New  Hacip.  198. 

^  State  V.  Lawson,  2  English,  391. 

*  Babcock  r.  Malbie,  7  Martin,  n.  s.  139;  Hepp  v.  Glover,  1.5  La  4G1  ; 
Powell  V.  Aiken,  18  Ibid.  321  ;  Urie  v.  Stevens,  2  Piobinson  (La.)  251. 

^Badlam  f.  Tucker,  1  Pick.  389;  Holbrook  v.  Baker,  5  Maine,  309; 
Thompson  v.  Stevens,  10  Ibid.  27;  Sargent  v.  Carr,  12  Ibid.  396;  Picquet 
V.  Swan,  4  Mason,  443  ;  Lyle  v.  Barber,  5  Binney,  457  ;  Llaven  v.  Low,  2 
New  Hamp.  13. 

*  Lyle  V.  Barker,  5  Binnej',  457. 

'  DeWolf  V.  Dearborn,  4  Pick.  466. 

*  Hartford  t'.  Jackson,  11  New  Hamp.  145. 

17==^  [197] 


§239  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

thereon,  so  that  the  consignor  or  owner  cannot  take  it 
out  of  his  hands  without  paying  his  claim,  a  creditor  of 
the  owner  cannot  attach  it.  In  such  a  case,  where  the 
consignee  has  made  acceptances  on  account  of  the  prop- 
erty, a  creditor  of  the  consignor,  wdshing  to  take  the 
property  out  of  the  hands  of  the  consignee,  without 
paying  the  amount  of  his  acceptances,  must  show  that 
the  acceptances  were  not  made  in  good  faith,  and  that 
the  consignee  is  not  bound  to  pay  them.^ 

§  239.  The  foregoing  are  instances  in  which  the 
ow^ner  has  so  far  lost  his  power  over  the  property  as 
that  it  cannot  be  attached  for  his  debt.  The  same, 
result  follows  in  relation  to  property  in  or  over  which, 
though  ostensibly  his,  he  has  not  yet  acquired  such 
interest  or  power  as  is  considered  m  law  to  constitute 
an  attachable  interest.  Thus,  where  merchants  resid- 
ing in  the  city  of  New  York,  received  an  order  for 
goods  from  persons  residing  at  a  distance,  no  particular 
directions  being  given  as  to  the  manner  in  which  the 
goods  should  be  forwarded,  and  the  vendors  proceeded 
to  select  the  goods  ordered,  and  a  portion  of  them, 
after  being  packed  in  boxes,  were  placed  on  board  a 
vessel  for  transportation,  the  cartman  taking  from  the 
master  of  the  vessel  receipts  for  each  load ;  it  was  held 
that  no  person  but  the  shipper  was  entitled  to  a  bill  of 
lading ;  and  the  shipper,  being  also  the  holder  of  the 
receipts,  might  direct  to  whom  the  bill  of  lading  should 
be  inade  out,  and  until  he  should  do  so  the  right  of 
possession  remained  in  himself;    and,  therefore,  that 


'  Lambeth  v.  Tui'iibull,  5  Robinson,  (La.)  204  ;  Skillman  i-.  Bethany,  2  Mar- 
tin, N.  s.  104. 

[198] 


CH.  X.]  ATTACHMENT    OF   PERSONAL    TROPERTY.  §  240 

there  was  no  such  deUvery  to  the  purchasers  as  ren- 
dered the  ofoods  hable  to  seizure  under  an  attachment 
agamst  them.^  So  goods  sold  to  one  for  resale,  to  be 
accounted  for,  at  a  future  day,  to  the  vendor,  and  if 
sold,  to  be  paid  for ;  if  not,  to  be  returned.  While  this 
arrangement  is  pending,  the  vendee  has  no  attachable 
interest  in  them.^  So  where  by  a  parol  contract  be- 
tween the  parties,  A.  was  to  cultivate  B.'s  farm,  find 
part  of  the  seed,  harvest  the  crop,  and  then  take  one 
half  of  it  as  a  compensation  for  his  labor,  and  deposit 
the  other  half  in  such  place  as  B.  should  direct ;  and 
before  the  crop  was  harvested,  A.  absconded,  being 
insolvent  \  it  was  held  that  he  had  no  such  interest  in 
the  crop  as  would  render  it  liable  to  attachment  for  his 
debts.^  So  where  property  is  sold  and  delivered,  upon 
condition  that  the  title  shall  not  vest  in  the  vendee, 
unless  the  price  agreed  upon  be  paid  within  a  specified 
time,  the  vendee  has  no  attachable  interest  in  the  prop- 
erty until  performance  of  the  condition*  So,  if  one 
acquires  possession  of  personal  property  by  fraudulent 
means,  he  has  not  such  title  thereto  as  will  enable  his 
creditors  to  attach  and  hold  it  as  against  the  person 
from  whom  it  was  fraudulently  obtained.^ 

§  240.   A  third  general  proposition  is,  that  it  is  not 
necessary  that  the  defendant's  property,  in  order  to  be 


^  Jones  V.  Bradner,  10  BarlDour,  S.  C.  193. 
2  Meklrum  r.  Snow,  9  Pick.  441. 

*  Chandler  v.  Thurston,  10  Pick.  205. 

*  Buckmaster  r.  Smith,  22  Vermont,  203. 

5  Buffington  v.  Gerrish,  15  Mass.  156  ;  D'Wolf  f.  Babbett,  4  Mason,  289  ; 
Gasquet  v.  Johnson,  2  Louisiana,  514. 

[199] 


§  242  ATTACHMENT    OF   PERSONAL    PROPERTY.  [CH.  X. 

subject  to  attachment,  should  be  in  his  possession.  It 
may  be  attached  in  the  plaintiff's  hands,  or  wherever 
found.-^ 


§  241.  A  fourth  general  proposition  is,  that  the  pos- 
session of  personal  property,  though  an  indicmm  of 
ownership,  does  not  render  it  liable  to  attachment  for 
the  debt  of  the  possessor  who  is  not  the  owner,  unless 
perhaps  his  possession  be  fraudulent  and  intended  for 
colorable  purposes.^  Thus  where  a  son  purchased  a 
farm  and  stocked  it,  with  a  view  to  famishing  a  home 
for  an  indigent  father,  and  permitted  the  father  to 
reside  and  labor  there,  the  products  of  the  farm  were 
held  not  subject  to  attachment  for  the  father's  debts.^ 
And  oxen  purchased  by  a  minor  son,  with  his  earnings, 
after  he  had  bought  his  time  of  his  father,  and  lent  to 
his  father  for  use,  were  held  not  liable  for  debts  con- 
tracted by  the  father  after  such  purchase  of  the  son's 
time.^  So  where  one  delivers  to  a  workman  materials 
to  be  manufactured ;  the  article  into  which  the  mate- 
rials are  wrought  cannot,  when  finished,  be  attached  as 
the  property  of  the  workman,  even  though  he  should 
have  put  into  it  materials  of  his  own.^ 

§  242.  A  fifth  general  proposition  is,  that  the  defend- 
ant's interest  in  personal  property,  need  not,  in  order 
to  its  being  subject  to  attachment,  be  several  and  ex- 

1  Graighle  v.  Notnagle,  Peters,  C.  C.  245. 
^    "  Moon  V.  Hawks,  2  Aikens,  390. 
'  Brown  i'.  Scott,  7  Vermont,  57. 
*  Chase  V.  Elkins,  2  Vermont,  290. 

5   ( 

[200] 


CH.  X.]  ATTACmiENT    OF   PERSONAL   PROPERTY.  §  243 

elusive.  An  interest  which  he  may  heave  in  common 
with  others  may  be  attached  ;i  and  the  property  may 
be  seized  and  removed,  notwithstanding  the  rights  of 
the  other  joint  owners,  arising  out  of  an  agreement 
between  the  owners,  may  thereby  be  impaired.^  In 
such  case,  only  the  undivided  interest  of  the  defendant 
can  be  sold,  and  the  purchaser  becomes  a  tenant  in 
common  with  the  other  cotenant.'^  This  doctrine  ap- 
plies to  cases  other  than  partnerships;  concerning 
which  there  is  much  diversity  of  decision. 

§  243.  A  sixth  general  proposition  is,  that  where 
property  is  of  such  nature  that  an  attachment  of  it 
w^ould  produce  a  sacrifice  and  great  injury  to  the  de- 
fendant, Avithout  benefiting  the  lolaintiff,  it  is  not 
attachable.  Such  is  the  rule  in  relation  to  the  defen- 
dant's private  papers,^  or  his  books,  in  which  his 
accounts  are  kept:^  Much  less  would  an  attachment  be 
considered  to  create  a  hen  on  the  accounts  contained 
in  the  books.^  This  rule  applies  also,  in  relation  to 
property  which  is  in  its  nature  so  peculiarly  perishable, 


1  Buddington  v.  Stewart,  14  Conn.  404  ;  Marion  v.  Faxon,  20  Ibid.  486. 
-  Remmington  v.  Cady,  10  Conn.  44;  Reed  v.  Howard,  2  Metcalf,  3G. 

*  Mersereau  v.  Xorton,  15  Johns.  179.  ^ 

*  Oystead  r.  Shed,  12  Mass.  506. 

5  Bradford  v.  Gillaspie,  8  Dana,  67;  Oystead  v.  Shed,  12  Mass.  506. 

6  Ohors  V.  Hill,  3  M'Cord,  338.  It  is  very  doubtful  whether  the  exemp- 
tion of  books  of  accounts,  and  negotiable  securities  from  direct  attachment,  is 
not  fraught  with  evil,  as  it  affords  an  abundant  opportunity  for  fraudulent 
concealment  of  means  which  debtors  have  for  paying  their  debts.  The  State 
of  Ohio  In  its  Code  of  Civil  Procedure,  adopted  in  1853,  has  taken  a  verj^ 
important  step,  which  deserves  to  be  followed  generally,  in  authorizing  the 
attachment  of  aZ/ books  of  account,  accounts,  and  securities  of  the  debtor, 
which  are  placed  in  the  hands  of  a  receiver  appointed  by  the  court,  who 
collects  them,  and  appHes  the  proceeds  under  the  direction  of  the  court. 

[201] 


§  244  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

that  it  is  manifest  the  purpose  of  the  attachment  cannot 
be  effected  before  it  will  decay  and  become  worthless ; 
as,  for  instance,  fresh  fish,  green  fruits,  and  the  like.^ 

§  244.  A  seventh  general  proposition  is,  that  where 
property  is  so  in  the  process  of  manufacture  and  tran- 
sition, as  to  be  rendered  useless,  or  nearly  so,  by  having 
that  process  arrested,  and  requiring  art,  skill,  and  care 
to  finish  it,  and  when  completed  will  be  a  different 
thing,  it  is  not  subject  to  attachment.  Such  are  hides 
in  vats,  in  the  process  of  tanning,  which  if  taken  out 
prematurely  and  dried  could  never  be  converted  into 
leather,  or  restored  to  their  former  condition.^  Such, 
too,  is  a  baker's  dough ;  the  materials  in  the  process  of 
fusion  in  a  glass  factory ;  the  burning  ware  in  a  potter's 
oven ;  a  burning  brickkiln ;  or  a  burning  pit  of  char- 
coal. In  all  such  cases,  the  officer  cannot  be  required 
to  attach,  as  he  should  have  the  right  of  removal ;  nor 
is  he  bound  to  turn  artist,  or  conduct,  in  person  or  by 
an  agent,  such  process,  and  be  responsible  to  both  par- 
ties for  its  successful  termination.^  But  where  a  pit  of 
charcoal  was  in  part  entirely  completed,  so  as  not  to 
require  any  further  attention  or  labor,  and  the  residue 
had  so  far  progressed  in  the  process  that  it  was  in  fact 
completed,  but  some  labor  and  skill  were  still  neces- 
sary, in  order  to  separate  and  preserve  it  properly ;  it 
was  held  that  if  an  officer  saw  fit  to  attach  and  take 
possession  of  it,  and  run  the  risk  of  being  able  to  keep 
it  properly,  he  had  a  right  to  do  so ;   and  that  if  any 


*  Wallace  V.  Barker,  8  Vermont,  440. 

"-  Bond  V.  Ward,  7  Mass.  123. 

'  Wilds  V.  Blanchard,  7  Vermont,  138. 

[  202  ]  ^^ 


CH.  X.]  ATTACHMENT    OF   PERSONAL    TROPERTY.  §  245 

portion  of  the  coal  should,  tliroiigli  the  want  of  proper 
care  and  attention  on  his  part,  be  destroyed,  the  owner 
could  not  maintain  trespass  against  him  for  such  non- 
feasance, and  that  the  attaching  creditor  was  not  liable 
therefor,  unless  the  omissions  were  by  his  command  or 
assent.^ 

§  245.   An  eighth  general  proposition  is,  that  prop- 
erty in  custodia  Icgls  cannot  be  attached.     This  class  of 
cases  might  properly  have  been  considered  among  those 
in  which  the  owner  had  lost  his  power  over  the  prop- 
erty;  but  for  the  sake   of  greater  distinctness,   it  is 
deemed  proper  to  arrange  them  under  a  separate  head. 
Goods  held  by  a  collector  of  the  revenue  of  the  United 
States,  to  enforce  payment  of,  or  security  for,  the  duties 
thereon,  are  considered  as  in  the  custody  of  the  law, 
and  therefore  not  attachable  by  a  creditor  of  the  im- 
porter.^    Repeated  attempts  have  been  made  to  levy 
attachments  or  executions  upon  money  collected  under 
execution ;  but  such  money  while  in  the  hands  of  the 
officer  who  collected  it  has  uniformly  been  held  not  to 
be  subject  to  such  levy.    The  grounds  for  this  rule  may 
be  briefly  summed  up,  as  follows.     In  the  first  place, 
money  collected  on  execution  is  not  the  property  of 
the  execution  plaintiff,  until  paid  over  to  him ;  and,  as 
an  attachment  can  be  levied  only  on  the  debtor's  prop- 
erty, it  follows  that  money  so  collected,  is  not,  while  in 
the  sheriff's  hands,  liable  to  be  attached.    Again,  money 
so  collected  is  in  custodia  lec/is,  and  for  that  reason,  if  no 
other,  should  be  exempt  from  seizure.     But  if  it  can  be 


1  Hale  V.  Huntley,  21  Vermont,  147. 

2  Harris  v.  Dennie,  3  Peters,  292. 

[203] 


§  246      ATTACHMENT  OF  PERSONAL  PROPERTY.     [CH.  X. 

attached,  the  slieinff  cannot  have  it  forthcommg  to  meet 
the  exigency  of  the  execution,  which  commands  him  to 
have  the  money  in  court,  on  the  return  day  of  the  writ, 
to  be  paid  over  to  the  plaintiff.  Judgments  of  courts 
of  justice  should  be  effectual,  which  they  cannot  be 
when  money  levied  in  pursuance  of  them  can  be  at- 
tached ;  and  the  office  of  the  execution — finis  ctfrudiis 
of  legal  proceedings — would  be  defeated,  if  the  pay- 
ment of  money  collected  under  it  could  be  prevented 
by  an  attachment.  To  allow  the  course  of  legal  pro- 
ceedings to  be  interfered  with  in  such  a  manner,  would, 
of  necessity,  greatly  protract  litigation,  and  produce 
continual  conflict  of  jurisdiction.  It  has,  therefore, 
been  repeatedly  decided,  that  money  collected  on  exe- 
cution is  not  the  subject  of  attachment  or  execution 
against  the  execution  plaintiff.^ 

§  246.  This  rule,  however,  applies  only  wdiere  the 
sheriff  is  bound,  virtidc  officii,  to  have  the  money  in  hand 
to  pay  to  the  execution  plaintiff;  and  not  to  cases  in 
which  he  has  in  his  possession,  after  satisfying  the  exe- 
cution, a  surplus  of  money,  raised  by  the  sale  of  prop- 
erty. Such  surplus  is  the  property  of  the  execution 
defendant,  and  being  held  by  the  sheriff  in  his  private 

^  Turner  w.  Fendall,  1  Cranch,  117;  Prentiss  v.  Bliss,  4  Vermont,  513; 
First  V.  Miller,  4  Bibb,  311;  Dubois  v.  Dubois,  6  Cowcn,  494 ;  Crane  v.  Frcese, 
1  Harrison,  305;  Dawson  v.  Ilolcomb,  1  Ohio,  135;  Reddick  v.  Smith,  4 
Illinois  (3  Scammon)  451  ;  Thompson  v.  Brown,  17  Pick.  462  ;  Conant  v. 
Bicknell,  1  D.  Chipman,  50;  Farmers  Bank  r.  Bcaston,  7  Gill  &  Johnson, 
421  ;  Jones  v.  Jones,  1  Bland,  443;  Blair  r.  Cantey,  2  Spears,  34  ;  Burrell 
V.  Letson,  1  Strobhart,  23D.  Tlicse  authorities  bear  on  the  question  of  seiz- 
ing the  money  in  specie.  For  those  applicable  to  an  attempt  to  reach  it  by 
garnishment,  see  Chapter  XXI. 

[204] 


CH.  X.]  ATTACHMENT    OF   PERSONAL    PROPERTY.  §  247 

and  not  in  liis  official  capacity,  it  may  be  attached  in 
his  hands.^ 

§  247.  Upon  the  principle  that  property  in  custodia 
legis  is  exempt  from  attachment,  it  has  been  held,  that 
money  paid  into  the  hands  of  a  clerk  or  prothonotary 
of  a  court  on  a  judgment,^  or  which  is  in  his  possession 
in  virtue  of  his  office,"  cannot  be  attached.  So  of  money 
paid  into  court.*  So  of  property  in  the  hands  of  an 
administrator,  which  will  belong  to  the  defendant  as 
distributee,  after  settlement  of  the  administrator's  ac- 
counts.^ So,  property  in  the  hands  of  an  executor, 
cannot  be  attached  in  a  suit  against  a  residuary  legatee 
or  a  devisee.^  So,  it  has  been  held,  that  garnishment 
has  the  effect  to  place  the  property  in  the  garnishee's 
hands  in  the  custody  of  the  law,  and  that  an  officer  has 
no  right,  after  the  garnishment,  to  take  the  property 
from  the  garnishee.'^  But  in  Massachusetts  it  has  been 
held  that,  though  garnishment  is  an  attachment  of  the 
effects  in  the  garnishee's  hands,  yet  they  may  be  at- 
tached and  taken  into  the  possession  of  the  officer,  sub- 
ject to  the  lien  of  the  creditor  who  effected  the  gar- 
nishment.^ 


1  Orr  V.  McBricle,  2  Car.  Law  Repos.  257  ;  Watson  v.  Todd,  5  ]\Liss.  271  ; 
Davidson  v.  Clayland,  1  Harris  &  Johnson,  546 ;  Tucker  v.  Atkinson,  1 
Humphreys,  300. 

2  Ross  V.  Clarke,  1  Dallas,  354;  AUston  v.  Clay,  2  Haywood  (N.  C.)  171. 

3  Hunt  V.  Stevens,  3  Iredell,  365. 

*  I^armer's  Bank  v.  Beaston,  7  Gill  &  Johnson,  421. 

'■>  Elliott  V.  Newby,  2  Hawkes,  21 ;  Young  v.  Young,  2  Hill  (S.  C.)  425. 

0  Thornliill  v.  Christmas,  11  Robinson  (La.)  201. 

'  Scholefield  v.  Bradlee,  8  INLartin,  495. 

8  Burlinn-ame  r.  Bell,  16  Mass.  318;  Swett  v.  Brown,  5  Pick.  178. 

18  [205] 


§  249  ATTACHMENT    OF    PERSONAL    PROPERTY.  [CH.  X. 

§  248.  II.  The  requisites  of  a  valid  attachment  of  inrson- 
altij.  When  an  attachment  is  delivered  to  an  officer, 
no  Hen  on  the  defendant's  property  is  thereby  created ; 
but  a  levy  is  necessary ;  and  the  first  levy  obtains  the 
first  right  to  satisfaction  ;  ^  unless,  as  in  some  States,  all 
the  defendant's  creditors  are  allowed  to  come  in  and 
share  equally  the  avails  of  the  first  attachment.  Hence 
the  necessity  that  the  officer  should  proceed  at  once 
with  the  execution  of  the  writ.  And  as  unnecessary 
delay  in  completing  the  attachment  might  open  the 
way  for  other  officers,  having  other  writs,  to  seize  the 
property,  the  first  attaching  officer  should  continue  the 
execution  of  the  process,  with  as  little  intermission  as 
possible,  until  his  duty  should  be  completed. 

§  249.  There  can  be  no  doubt  that  an  officer,  in  at- 
taching personalty,  must  actually  reduce  it  to  possession, 
so  far  as,  under  the  circumstances,  can  be  done  ;^  though 
in  doing  so,  it  is  not  necessary  that  any  notoriety  should 
be  given  to  the  act,  in  order  to  make  it  effectual.^  What 
is  an  actual  possession,  sufficient  to  constitute  an  attach- 
ment, must  depend  upon  the  nature  and  position  of  the 
property.  In  general,  it  may  be  said,  that  it  should  be 
such  a  custody  as  to  enable  the  officer  to  retain,  and 
assert  his  power  and  control  over,  the  property,  and  so 


1  Crowninsbield  v.  Strobel,  2  Brevard,  80 ;  Robertson  v.  Forrest,  Ibid. 
4G6  ;  Betliune  v.  Gibson,  Ibid.  501  ;  Crocker  v.  Radcliffe,  3  Brevard,  23. 

"  Lane  v.  Jackson,  5  Mass.  157  ;  Ashmun  v.  Williams,  8  Pick.  402;  Lyon 
V.  Rood,  12  Vermont,  233;  Taintor  v.  Williams,  7  Conn.  271;  Hollister  v. 
Goodale,  8  Conn.  332 ;  Odiornc  v.  CoUcy,  2  New  Ilamj).  GG  ;  Huntington  v. 
Blaisdell,  2  New  Hamp.  317 ;  Dunklco  r.  Falcs,  5  New  Ilamp.  527. 

^  liemmenway  v.  Wheeler,  14  Pick.  408. 

[  206  ]  ^* 


CH.  X.]  ATTACHMENT    OF    PERSONAL    PROPEETY.  §  250 

that  it  cannot  prolDably  be  withdrawn,  or  taken  by 
another,  without  his  knowing  it.-^ 

§  250.  In  Connecticut,  a  case  is  reported,  where  the 
doctrine  is  laid  down,  that,  to  effect  a  valid  attachment 
of  goods,  the  officer  must  have  the  actual  possession  of 
them,  as  contradistinguished  from  a  constructive  posses- 
sion. The  facts  of  the  case  were  these :  "  A.  having  an 
attachment  against  B.,  went  to  levy  it  on  a  barouche 
that  was  in  B.'s  carriage  house,  and  obtained,  for  that 
purpose,  the  key  of  the  house.  C.  having  also  an  at- 
tachment against  B.,  went  near  the  house,  and  concealed 
himself  When  A.  opened  the  door,  he  declared  that 
he  attached  all  the  carriage  and  harness  in  the  house ; 
but  before  he  actually  touched  the  carriage,  C.  sprang 
in  and  seized  it.  The  court  sustained  the  attachment 
made  by  C,  on  the  following  grounds :  "  The  only  ob- 
ject of  attachment  is  to  take  out  of  the  defendant's  pos- 
session, and  to  transfer  into  the  custody  of  the  law,  act- 
in  o-  through  its  legral  officer,  the  ffoods  attached,  that 
they  may,  if  necessary,  be  seized  in  execution,  and  be 
disposed  of  and  delivered  to  the  purchaser.  Hence,  the 
legal  doctrine  is  firmly  established,  that  to  constitute  an 
attachment  of  goods  the  officer  must  have  iJie  actual  pos- 
session and  custody.  That  the  plaintiff  was  at  the  door 
of  the  carriage  house,  with  a  writ  of  attachment  in  his 
hand,  only  proves  an  intention  to  attach.  To  this,  no 
accession  is  made  by  the  lawful  possession  of  the  key, 
and  the  unlocking  of  the  door.  Suppose,  what  does  not 
appear,  that  the  key  was  delivered  to  him  by  the  owner 
of  the  carriage,  that  he  might  attach  the  property ;  this 

^  Hemmenwav  v.  Wheeler,  14  Pick.  408. 

[207] 


§  252  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

would  be  of  no  amount.  He  might  have  the  construc- 
tive possession,  which,  on  a  sale,  as  between  vendor  and 
vendee,  would  be  sufficient;  but  an  attachment  can 
only  be  made  by  the  taking  of  actual  possession.  As 
little  importance  is  attached  to  the  unlocking  of  the 
door,  and  the  declaration  that  the  plaintiff  attached  the 
carriage.  This  was  not  a  touching  of  the  property,  or 
the  taking  of  the  actual  possession.  The  removal  of  an 
obstacle  from  the  way  of  attaching,  as  the  opening  of 
the  door,  is  not  an  attachment,  nor  was  the  verbal  dec- 
laration. An  attachment  is  an  act  done  ;  and  not  a 
mere  oral  annunciation.  From  these  various  acts,  taken 
separately  or  conjointly,  the  plaintiff  did  not  obtain  the 
possession  and  custody  of  the  carriage,  and  therefore  he 
did  not  attach  the  property."  ^ 

§  251.  The  views  expressed  in  this  case,  it  is  believed, 
are  not  sustained  in  any  other  State ;  but,  on  the  con- 
trary, the  decisions  seem  to  be  with  unanimity  the  other 
way.  It  has  been  repeatedly  held,  that  personal  prop- 
erty may  be  attached  without  the  officer  touching  it. 

§  252.  In  Maine,  the  doctrine  was  laid  down  that,  to 
constitute  an  attachment,  it  is  not  necessary  that  the 
officer  should  handle  the  goods  attached,  but  he  must 
be  in  view  of  them,  with  the  power  of  controlling  them, 
and  of  taking  them  into  his  possession.  Therefore, 
where  it  appeared  that  the  officer  went  upon  premises 
of  tbe  defendant  with  an  attachment,  and  before  leav- 
ing, declared  to  a  person  who  was  accustomed  to  work 
there,  that  he  had  attached  the  property  there,  and  re- 

1  IIolllst(|p  V.  Goodale,  8  Conn.  332. 

[208] 


CH.  X.]  ATTACmiENT    OF   PERSONAL    PROPERTY.  §  254 

quested  the  person  to  forbid  any  one  taking  the  things 
away,  but  did  not  give  the  property  into  the  custody 
of  that  person,  and  then  left,  and  did  not  return  to  take 
the  property  into  his  possession,  the  court  held  that  the 
attachment  might  be  sufficient,  if  followed  by  the  con- 
tinual presence  of  the  officer,  or  of  some  one  on  his 
behalfi 

§  253.  If,  however,  the  officer  have  not  the  property 
under  his  control,  or,  so  having,  he  abandon  it,  the  at- 
tachment is  lost.  Therefore,  where  an  officer  having 
an  attachment,  got  into  a  wagon  in  which  the  defend- 
ant was  riding,  and  to  which  a  horse  was  harnessed, 
and  told  the  defendant  that  he  attached  the  horse,  and 
then  rode  down  street  w^ith  the  defendant,  without  ex- 
ercising any  other  act  of  possession,  and  left  the  horse 
with  the  defendant,  upon  his  promising  to  get  a  re- 
ceipter  for  it,  the  court  held  that,  as  the  horse  had  not 
been  under  the  officer's  control  for  a  moment,  or  if  it 
could  be  considered  that  he  had  an  instantaneous  pos- 
session, it  was  as  instantaneously  abandoned,  there  was 
no  attachment.^ 

§  254.  In  New  Hampshire,  the  court  say  that  the 
doings  of  an  officer  in  respect  to  personal  estate  cannot 
amount  to  a  valid  attachment,  unless  the  articles  are 
taken  into  his  actual  custody,  or  are  placed  under  his 
exclusive  control ;  by  which  actual  custody  and  exclu- 
sive control,  they  do  not  mean  that  the  officer  must 
touch  and  remove  every  article,  before  an»attachment 

^  Nichols  V.  Patten,  18  Maine,  231. 
^  French  v.  Stanley",  21  Maine,  512. 

18  ''  [  209  ] 


§  255  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

can  be  deemed  valid,  but  that  the  articles  must  be  so 
withiu  his  power  as  to  enable  him  to  touch  or  remove 
them.^  In  a  subsequent  case  in  the  same  State,  where 
an  officer  was  in  a  house,  levying  an  attachment  on 
furniture,  and  another  officer  entered  a  chamber  of  the 
house  not  yet  reached  by  the  first,  and  attached  the 
articles  therein,  the  court  held  the  proceedings  of  the 
first  officer  to  amount  to  an  attachment  of  the  whole 
effects,  and  that  the  second  officer's  attachment  was  ille- 
gal; and  they  say, — "the  whole  articles  must  doubt- 
less be  within  the  power  of  the  officer.  That  is,  they 
must  not  be  inaccessible  to  him  by  their  distance,  or 
by  being  locked  up  from  his  reach  in  an  apartment  not 
under  his  control ;  or  by  being  so  covered  with  other 
articles,  or  so  in  the  custody  of  another  person,  that  the 
officer  cannot  see  and  touch  them."^  Again,  the  same 
court  held  that  to  make  an  attachment  the  officer  must 
take  possession  of  the  goods ;  but  that  it  is  not  neces- 
sary that  the  goods  should  be  removed,  but  they  must, 
in  all  cases,  be  put  out  of  the  control  of  the  debtor.^ 

§  255.  In  Vermont,  it  is  held  unnecessary  that  the 
officer  should  actually  touch  the  property,  but  he  must 
have  the  custody  or  control  of  it  in  such  a  way  as  either 
to  exclude  all  others  from  taking  it,  or,  at  least,  to  give 
timely  and  unequivocal  notice  of  his  own  custody.^ 
Therefore,  where  an  officer  attaching  goods  in  a  build- 
ing, fastened  the  windows,  locked  the  door,  and  took 


^  Odiorner.  Colley,  2  New  Ilamp.  G6. 
-  Huntington  r.  Blaisdell,  2  Xew  Ilamp.  317. 
'  Dunklee  v.  Fales,  5  New  Ilamp.  527, 

*  Lyon  r.  Rood,  12  Vermont,  233.     In  this  case  the  above  cited  case  of 
Ilollister  v.  Goodale,  8  Connj_i332,  is  severely  condemned. 

[210] 


CH.  X.]  ATTACmiENT    OF   PERSONAL   PROPERTY.  §  257 

the. key  into  liis  possession,  it  was  held  a  sufficient  tak- 
ing possession  of  the  goods,  as  respects  subsequent  at- 
tachments, even  though  he  carelessly  failed  to  secure 
every  avenue  to  the  room,  and  through  one  unguarded 
avenue  another  officer  entered  and  seized  the  property.^ 

§  256.  In  Massachusetts,  the  necessity  for  an  actual 
handling  of  the  property  in  order  to  effect  an  attach- 
ment is  not  recognized.  Thus,  "where  the  officer  went 
with  a  writ  and  took  possession  of  the  defendant's  store, 
and  locked  it  up  \  it  was  held  to  be  a  sufficient  attach- 
ment of  the  goods  in  the  store,  and  valid  against  a  sub- 
sequent attachment  or  mortgage  thereof.^ 

§  257.  With  regard  to  heavy  and  unmanageable  arti- 
cles, there  seems  to  be  no  necessity  for  an  actual  hand- 
ling to  constitute  an  attachment.  Thus,  an  officer  went 
with  an  attachment,  within  view  of  a  quantity  of  hay 
in  a  barn,  and  declared  in  the  presence  of  witnesses, 
that  he  attached  the  hay,  and  posted  up  a  notification 
to  that  effect  on  the  barn  door ;  and  it  was  held  to  be 
a  valid  attachment.^  So  where  an  officer  attached  a 
parcel  of  hewn  stones,  lying  scattered  on  the  ground, 
by  going  among  and  upon  them,  and  declaring  that  he 
attached  them,  and  placed  them  in  charge  of  the  plain- 
tiff; but  made  no  removal  of  them,  nor  gave  any  notice 
to  any  third  persons  of  the  attachment,  nor  took  any 
other  mode  of  giving  notoriety  to  the  act ;  it  was  held 
to  be  a  valid  attachment,  because  it  was  manifest  that 

^  Xewton  V.  Adams,  4  Vermont,  437. 

^  Denny  r.  Warren,  16  Mass.  420  ;  Gordon  v.  Jenncy,  Tljid.  4G5  ;  Shephard 
V.  Butterfield,  4  Gushing,  425.     See  Xaylor  r.  Dennie,  8  Pick.  198. 
3  Merrill  v.  Sawver,  8  Pick.  397. 

[211] 


§  257  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

the  officer  did  not  intend  to  abandon  the  attachment, 
and  that  the  measures  he  took,  considering  the  bulky 
nature  and  the  situation  of  the  property,  were  suffi- 
cient.^ So  where  an  officer  attached  a  quantity  of  iron 
ore  lying  on  the  surface  of  the  ground,  by  informing 
the  clerk  and  workmen  of  the  defendant  of  the  attach- 
ment, but  did  not  remove  the  ore  ;  and  in  consequence 
of  his  declaration  the  workmen  were  dismissed,  and  the 
defendant's  operations  ceased,  and  the  facts  became 
generally  known  and  talked  of;  and  it  appeared  that 
the  removal  of  the  ore  would  have  been  attended  with 
great  expense  and  serious  injury  to  the  property;  it 
was  held,  that  the  attachment  was  valid ;  that  where 
the  removal  of  attached  property  would  result  in  great 
waste  and  expense,  it  may  be  dispensed  with ;  and  that 
in  such  case  the  continued  presence  of  the  officer  with 
the  property,  in  person  or  by  agent,  is  not  necessary ; 
it  being  sufficient  if  he  exercised  due  vigilance  to  pre- 
vent its  going  out  of  his  control? 


1  Ilemmenway  v.  Wheeler,  14  Pick.  408. 

2  Mills  V.  Camp,%  Conn.  219;  BickneU  v.  Trickey,  34  Maine,  273. 

[212] 


CHAPTER    XI. 

OF   SIMULTANEOUS   AND    SUCCESSIVE   ATTACHMENTS. 

§  258.  A  COMMON  occurrence  in  tlie  use  of  the  rem- 
edy by  attachment  is,  for  a  number  of  writs  to  be 
phiced,  at  the  same  time,  or  in  quick  succession,  in  the 
hands  of  ofhcers,  against  the  same  defendant,  and  served 
on  the  same  property,  simultaneously,  or  at  short  suc- 
cessive intervals.  As  such  cases  usually  occur  where 
the  defendant  is  in  failing  circumstances,  and  the  prop- 
erty levied  on  is  regarded  as  probably  the  only  availa- 
ble resource  for  the  satisfaction  of  his  creditors,  it  is 
important  to  ascertain  the  rules  which  are  to  decide 
between  interests  which,  under  such  circumstances,  are 
almost  certain  to  come  in  conflict.  This  subject  is  of 
no  importance  where  —  as  in  some  State*  of  the  Union 
—  the  first  attachment  holds  the  property,  not  to  the 
exclusion  of  all  subsequent  ones,  but,  for  the  benefit  of 
all  creditors  of  the  defendant,  who  may  come  in  and 
prove  their  demands,  and  thereby  become  entitled  to 
share  with  the  first  attacher  the  avails  of  his  diligence ; 
but  wherever,  as  in  the  large  majority  of  the  States, 
the  writs  hold  in  the  order  of  their  service,  its  impor- 
tance will  be  understood. 


§  259.    The    rights   of  attaching   creditors,  who,   as 


[213] 


§  260       SIMULTANEOUS  AND  SUCCESSIVE  ATTACHMENTS.    [CH.  XI. 

against  their  common  debtor,  have  equal  claims  to  the 
satisfaction  of  their  debts,  must  depend  on  strict  law ; 
and  if  one  loses  a  priority  once  acquired,  by  any  want 
of  regularity  or  legal  diligence  in  his  proceedings,  it  is 
a  case  where  no  equitable  principles  can  afford  him 
relief;  where  the  equities  are  equal;  and  where  the 
right  must  be  governed  by  the  rule  of  law.^ 

§  260.  Neither  the  issue  of  an  attachment,^  nor  its 
lodgement  in  the  hands  of  an  officer,'^  confers  any  rights 
upon  the  plaintiff  in  the  defendant's  property.  It  is 
only  when  the  writ  is  served,  that,  as  between  plaintiff 
and  defendant,  And  generally  as  between  different  plain- 
tiffs, its  lien  takes  effect.^  Hence,  when  several  attach- 
ments against  the  same  person  are  simultaneously 
served  on  the  same  property,  they  will  be  entitled  to 
distribute  among  them  the  proceeds  of  the  attached 
property,  or  the  funds  in  the  hands  of  garnishees.  This 
distribution  is  not  in  proportion  to  the  amount  claimed 
under  each  attachment,  but  according  to  the  number 
of  the  writs,  each  being  entitled  to  an  aliquot  part ; 
with  this  qualification,  however,  that  if  the  share  of 
any  plaintiff  should  be  more  than  sufficient  to  satisfy 
his  demand,  the  surplus  must  be  appropriated  to  any 

^  Suydani  v.  Iliiggeford,  23  Pick.  4G5. 

^  IMoars  v.  Winslow,  1  Smedes  &  Marshall,  Ch'y  R.  449 ;  Williamson  v. 
Bowie,  6  IMunford,  176  ;  Wallace  v.  Forrest,  2  Harris  &  JNI'IIenry,  261. 

^  Crowninsliield  v.  Strobel,  2  Brevard,  80 ;  Robertson  v.  Forrest,  Ibid. 
466  ;  Bctliunc  v.  Gibson,  Ibid.  501  ;  Crocker  v.  Radcliffe,  3  Ibid.  23. 

*  Gates  V.  Bushnell,  9  Conn.  530 ;  Sewell  v.  Savage,  1  B.  Monroe,  260 ; 
Nutter  V,  Connet,  3  Ibid.  201  ;  Fitch  v.  Waite,  5  Conn.  117;  Crowninsliield 
r.  Strobel,  2  Brevard,  80 ;  Robertson  v.  Forrest,  Ibid.  4GG;  Bethunc  v.  Gib- 
son, Ibid.  501  ;  Crocker  v.  Radclifie,  3  Ibid.  23. 

[  2H  ] 


en.  XI.]    SIMULTANEOUS  AND  SUCCESSIVE  ATTACHMENTS.       §  262 

other  of  the  demands  which  is  not  paid  in  full  by  its 
distributive  share.^ 

§  261.  This  rule  v/as  applied  in  Massachusetts  not 
only  to  the  case  of  simultaneous  attachments  by  differ- 
ent officers,^  but  where  the  writs  were  in  the  hands  of 
the  same  officer,  and  were  delivered  to  him  at  different 
times,  but  served  together.'^  In  Kentucky,  however,  it 
was  determined,  that,  though  in  the  case  of  distinct  offi- 
cers, the  first  levy  gives  the  prior  lien,  yet  w^here  seve- 
ral attachments  againd  the  same  fund,  came,  in  succession, 
to  the  hands  of  the  same  officer  or  his  deputies,  it  is  the 
duty  of  the  officer  to  execute  them  in-  the  order  in 
which  they  were  received.  And  although  when  the 
process  conies  to  the  hands  of  different  deputies,  this 
order  of  service  may  happen  to  be  reversed  without 
fault,  the  court,  having  the  fund  in  its  possession  under 
all  the  attachments,  should  distribute  it  according  to 
the  rule  which  should  have  governed  the  execution  of 
the  process.* 

§  262.  Where  different  writs  are  in  the  hands  of  the 
same  officer,  there  need  be  no  difficulty  in  ascertaining 
whether  their  service  was  simultaneous ;  but  when  dif- 


1  Shove  V.  Dow,  13  Mass.  529  ;  Sigourney  v.  Eaton,  14  Pick.  414;  Rock- 
wood  V.  Varnum,  17  Ibid.  289;  Durant  v.  Johnson,  19  Ibid.  544  ;  Davis  v. 
Davis,  2  Gushing,  111;  Campbell  v.  Ruger,  1  Cowen,  215;  Nutter  v.  Con- 
net,  3  B.  Monroe,  201.  This  rule,  however,  does  not  obtain  in  North  Car- 
olina and  Tennessee,  where  the  distribution  is  made  i^ro  rata.  Hill  v.  Child, 
3  Devereux,  2C5  ;  Freeman  c.  Grist,  1  Devereux  &  Battle,  217;  Porter  v. 
Earthman,  4  Yerger,  358  ;  Love  v.  Harper,  4  Humphreys,  113. 

2  Shove  V.  Dow,  13  Mass.  529. 

»  Rockwood  V.  Varnum,  17  Pick.  289. 

*  Kennon  v.  Ficklin,  6  B.  Monroe,  414  ;  Clay  r.  Scott,  7  Ibid.  554. 

[215] 


§  264       SIMULTxlJN^EOUS  AND  SUCCESSIVE  ATTACHMENTS.    [CH.  XI. 

ferent  officers  are  emiDloyecl,  each  intent  on  obtaining 
priority,  questions  of  difficulty  may  occur.  A  singular 
case  of  this  description  is  reported  in  Massachusetts, 
where  two  officers  held  attachments  against  the  same 
defendant..  One  returned  his  writ  served  "  at  one  min- 
ute past  12  o'clock,  a.  m./'  the  other  that  he  served  his 
writ  "  immediately  after  midnight "  on  the  same  day. 
The  court  held  that  each  of  them  made  the  attachment 
as  soon  as  it  could  be  done  after  twelve  o'clock  at  night, 
and  that  it  was  impossible  to  say  that  either  had  the 
priority.^ 

§  2G3.  Where  several  writs  against  the  same  defend- 
ant were  served  in  the  course  of  the  same  day,  and  the 
returns  on  all  except  one  stated  the  time  of  the  day 
when  the  service  was  made,  and  that  one  stated  only  a 
service  on  that  day ;  it  was  held,  that  it  was  neither 
matter  of  legal  presumption,  nor  construction,  that  the 
latter  writ  was  served  at  the  same  time  with  any  of  the 
others.  But  parol  evidence  was  admitted  to  show  at 
what  time  of  the  day  specified  in  the  return  the  service 
was  in  fact  made  ;  such  evidence  being  regarded  as  en- 
tirely consistent  with  the  return.^ 

§  264.  In  a  similar  case  where  an  officer  returned  an 
attachment  as  made  at  12  o'clock,  noon,  on  a  certain 
day,  it  was  considered  as  prior  in  point  of  time  to  an- 
other attachment  returned  as  made  on  the  same  day. 
indefinitely,  without  specifying  any  particular  hour. 
And  it  was  held  in  that  case  that  no  amendment  of  the 


1  Shove  V.  Dow,  13  Mass.  529. 

-  Brainari't.  Biishncll,  11  Conn.  16. 

[216] 


CH.  xl]  simultaneous  and  successive  attachments.     §2G5 

latter  return  was  admissible,  which  would  destroy  or 
lessen  the  rights  of  third  persons  previously  acquired.^ 

§  265.  Neither  the  actual  custody  nor  the  exclusive 
control  of  the  same  articles  of  personal  property  can,  at 
the  same  time,  exist  in  two  distinct  persons ;  and  there- 
fore, as  possession  of  goods  by  an  officer  is  an  mdispen- 
sable  requisite  to  a  valid  attachment  of  them,  it  follows 
that  when  an  officer  has  levied  an  attachment  on  goods, 
and  has  them  in  his  custodj^,  no  other  officer  can  seize 
them  under  another  writ ;  for  in  order  to  attach,  he 
must  lawfully  take  possession  of  them ;  but  this  he  can- 
not do,  since  the  first  attaching  officer  has,  by  his  prior 
attachment,  a  special  property  in  them,  and  they  are  in 
the  custody  of  the  law,  and  it  would  introduce  confu- 
sion to  admit  of  several  officers  contending  for  the  pos- 
session of  attached  goods.^  And  it  matters  not  if  the 
first  attaching  officer  had  levied  upon  more  than  was 
sufficient  to  satisfy  the  writ  under  which  he  acted.'^ 
The  sam^e  rule  prevails  where  the  property  is  not  in 
the  actual  custody  of  the  first  officer,  but  in  the  hands 
of  a  receipter,  to  whom  he  may  have  intrusted  it. 
The  possession  of  the  receipter  being  that  of  the  officer, 
cannot  be  violated  by  taking  the  goods  from  his  custody 
under  another  attachment.* 


1  Fairfield  v.  Paine,  23  Maine,  498. 

-  Watson  V.  Todd,  5  Mass.  271  ;  Vinton  v.  Bradford,  13  Mass.  114  ;  Bur- 
lingame  v.  Bell,  16  Mass.  322  ;  Odiorne  v.  Colley,  2  New  Hamp.  G6  ;  Moore 
V.  Graves,  3  Ibid.  408  ;  Strout  v.  Bradbury,  5  Maine,  313. 

'  Vinton  v.  Bradford,  13  Mass.  114. 

*  Thompson  v.  Marsh,  14  Mass.  2G9. 

19  [217] 


§  2G7       SIMULTANEOUS  AND  SUCCESSIVE  ATTACHMENTS.    [CH.  XI. 

§  266.  When  it  is  desired  to  lay  an  attachment  upon 
property  already  attached,  and  in  an  officer's  custody, 
the  writ  should  be  delivered  to,  and  executed  by,  him ; 
when  it  will  be  available  to  hold  the  surplus,  after  satis- 
fying the  previous  attachment,  or  the  whole,  if  that  at- 
tachment should  be  dissolved.  In  such  case  no  overt  act 
on  the  part  of  the  officer  is  necessary  to  effect  the  second 
levy,  but  a  return  of  it  on  the  writ  will  be  sufficient.^ 
So,  where  the  property  is  in  the  hands  of  a  bailee,  the 
officer  who  placed  it  there  may  make  another  attach- 
ment, without  the  necessity  of  an  actual  seizure,  by 
making  return  thereof,  and  giving  notice  to  the  bailee.^ 

§  267.  These  rules  refer  to  seizures  of  goods,  and  not 
to  cases  where  property  is  attached  by  one  officer  by 
garnishment  of  the  individual  in  whose  possession  it 
may  be,  and  afterwards  by  another  officer,  by  actual 
seizure  and  removal  thereof  from  the  garnishee's  pos- 
session. This,  though  a  proceeding  not  by  any  means 
to  be  approved,  and,  where  the  writs  issue  from  differ- 
ent jurisdictions,  wholly  inadmissible,  yet  may,  it  seems, 
be  done,  where  the  two  wTits  proceed  from  the  same 
jurisdiction.  The  officer  making  the  seizure  of  the 
goods,  will  hold  them  subject  to  the  prior  lien  of  the 
garnishment.  He  must  keep  them  until  the  result  of 
the  garnishment  is  ascertained  ;  when,  if  the  garnishee 
be  charged  in  respect  of  them,  the  officer  will  be  bound 
to  restore  them  to  him  and  suffer  them  to  be  sold ;  and 


1  Turner  v.  Austin,  16  Mass.  181. 

2  Knap  V.  Sprague,  9  Mass.  2o8  ;  "Wlilttier  v.  Smith,  11  Mass.  211  ;  Odi- 
orne  v.  Colley,  2  New  Ilamp.  G6  ;  "Whitney  v.  Farwell,  10  Kew  Ilamp.  9. 

[218] 


CH.  XI.]    SniULTANEOUS  AND  SUCCESSR^E  ATTACHMENTS.       §  268 

if  he  fail  to  do  so  lie  will  be  liable  to  the  garnishee/  or 
to  the  plaintiff  in  the  garnishment.^ 

§  2G8.  If  an  officer  suffer  his  possession  of  attached 
property  to  be  lost,  it  may  be  attached  by  another  offi- 
cer, though  the  latter  may  be  aware  of  the  former  at- 
tachment having  been  made,  if  his  knowledge  extend 
not  beyond  that  fact.  For  it  does  not  follovr  that,  be- 
cause he  knows  an  attachment  was  at  one  time  made, 
he  knows  that  it  still  exists ;  on  the  contrary,  he  may 
well  infer,  from  finding  the  property  no  longer  in  the 
possession  of  the  officer  who  first  attached  it,  that  the 
attachment  has  been  discharged.  But  if  he  know  that 
there  is  a  subsisting  attachment,  —  although  the  de- 
fendant might,  at  the  time,  by  the  permission  of  the 
bailee,  to  whom  the  property  had  been  intrusted,  be  in 
possession  of  it, —  he  cannot  acquire  a  lien  by  attaching 
it;^  After  he  has  made  a  levy,  however,  notice  to  him 
that  a  prior  attachment  exists,  will  not  affect  the  valid- 
ity of  the  levy.* 

^  Biirlingame  r.  Bell,  IG  Mass.  318  ;  Swett  v.  Browu,  5  Pick.  178. 
-  Eockwood  V.  Yarnum,  17  Pick.  289. 

*  Bagley  v.  White,  4  Pick.  395 ;  Young  v.  W^alker,  12  New  Hamp.  502. 
Brdce  V.  Holden,  21  Pick.  187. 

[219] 


CHAPTER  XII. 

CUSTODY  OF  ATTACHED  PROPERTY. 

§  269.  The  writ  of  attachment  being  mesne  process, 
has  no  value  or  efficacy  except  as  being  a  means  of 
keeping  property  imtil,  under  the  jBnal  process  in  the 
cause,  it  can  be  made  available  to  satisfy  the  plaintiff's 
demand.  It  is,  therefore,  important  that  the  officer 
should  sustain  such  a  relation  to  the  property  he  has 
seized,  as  will  enable  him  to  hold  it  to  answer  the 
purpose  for  which  it  was  attached.  To  this  end  he  is, 
by  the  levy  of  the  attachment,  and  the  reduction  of 
the  property  into  his  possession,  vested  with  a  special 
property  in  the  latter,  which  enables  him  to  protect  the 
rights  he  has  acquired,^  In  order  to  maintain  his  spe- 
cial property,  and  to  entitle  himself  to  the  continued 
protection  of  the  law,  he  must  in  his  proceedings  with 
the  property,  subsequent  to  the  attachment,  comply 
with  all  the  requirements  of  the  law,  or  show  some 
leii-al  excuse  for  not  doinoj  so ;  and  if  he  does  not,  he 
becomes  liable  not  only  to  those  on  whose  behalf  he 


1  Barker  v.^  Miller,  6  Johns.  195;  Ilotehkiss  v.  M'Yickar,  12  Ibid.  403; 
Wilbraham  v.  Snow,  2  Saunders,  47  ;  Ladd  i'.  North,  2  i\Iass.  514  ;  Gibbs  v. 
Chase,  10  Ibid.  125  ;  Whittier  v.  Smith,  U  Ibid.  211 ;  Toole  v.  Symonds,  1 
New  Ilamp.  289  ;  Huntington  v.  Blaisdell,  2  Ibid.  317  ;  Odiorne  v.  Colley, 
Ibid.  CG.  ^ 

[220] 


CH.  xil]         custody  of  attached  property.  §  271 

acts,  but  also  to  the  owner  of  the  property,  and  those 
claimincr  under  him  and  standino-  in  his  situation.^ 

§  270.  Nothing  is  more  important  in  sustaining  the 
officer's  special  property  in  articles  attached,  than  his 
continued  possession  of  them,  actual  or  constructive. 
This  point,  regarded  in  reference  to  the  protection  of 
attached  property  from  other  attachments,  and  the  con- 
tinuation of  the  officer's  lien,  falls  properly  under  an- 
other division  of  this  work.^  But,  considered  with  a 
view  to  the  rendition  of  the  property,  at  the  termina- 
tion of  the  suit,  to  meet  the  exigency  of  the  execution, 
should  one  be  obtained,  or  to  be  returned  to  the  de- 
fendant, should  judgment  be  given  in  his  favor,  or  the 
attachment  be  otherwise  dissolved,  a  class  of  questions 
arise,  which  we  now  proceed  to  consider. 

§  271.  And,  first,  to  what  degree  of  care  and  dili- 
gence in  the  keeping  of  attached  property  is  an  officer 
held  ?  This  question  received  a  careful  and  elaborate 
consideration  by  the  Supreme  Court  of  Vermont,  which 
is  referred  to  here,  rather  than  in  another  place,  be- 
cause it  was  raised  in  connection  with  the  officer's  lia- 
bility to  the  plaintiff  in  attachment,  for  not  having 
property  forthcoming  on  execution.  Certain  cows  were 
attached,  and  the  officer  being  sued  for  failing  to  have 
them  forthcoming,  to  be  sold  on  execution,  offered  tes- 
timony to  show  that  when  they  were  attached,  he  de- 
livered them,  for  safe  keeping,  to  one  Underwood ;  that 
the  plaintiff's  agent,  who  ordered  the  attachment  made. 


^  Jordan  v.  Gallup,  16  Conn.  536. 

^  See  Chap.  XVI.  on  Dissolution  of  Attachment. 

19===  [221] 


§271  CUSTODY    OF   ATTACHED    PROPERTY.  [CH.  XII. 

was  present  and  naacle  no  objection ;  that  Underwood 
put  the  cows  into  a  pasture,  with  a  good  and  sufficient 
fence ;  and  in  a  few  days  after,  the  defendant,  the  owner 
of  the  cows,  without  the  knowledge  or  consent  of  the 
officer,  or  Underwood,  took  down  the  fence  of  the  pas- 
ture, drove  the  cows  out,  and  put  them  in  his  own  pas- 
ture, and  gave  such  notice  that  other  creditors  of  his 
attached  and  held  the  cows.  This  testimony  was  re- 
jected by  the  court,  and  the  matter  came  up  on  the 
propriety  of  the  rejection.  The  Supreme  Court,  after 
examining  a  number  of  cases  cited  in  support  of  the 
plaintiff's  action,^  proceed  as  follows :  — 

"  Thus  stand  the  decided  cases  which  have  been  pre- 
sented to  the  court.  And  it  is  needless  to  say  they  do 
not  afford  much  aid  in  determining  the  question  before 
us.  "VYe  are  left  to  decide  it  much  as  we  judge  the 
general  principles  of  the  law  of  bailment,  and  the  kin- 
dred analogies,  require. 

"  So  far  as  the  general  principles  of  the  law  of  bail- 
ment are  concerned,  there  is  not,  at  the  present  day, 
perhaps,  any  very  striking  reason  to  be  urged  why 
sheriffs  should  be  laid  under  any  higher  degree  of  obli- 
gation in  regard  to  keeping  property,  than  other  bailees 
for  pay,  i.  e.,  ordinary  care  and  diligence.  But  early  in 
the  history  of  the  common  law  it  was  decided  that,  in 
regard  to  property  taken  on  final  process,  (and  in  Eng- 
land it  is  taken  on  no  other  ordinary  process,)  the 
officer  making  the  levy  should  be  liable  for  its  safe 


1  Those  cases  were,  Jcnncr  r.  JolifTo,  C  Johns.  9,  and  9  Johns.  381 ;  Cilley 
r.  Jenness,  2  New  Ilamp.  87;  Phillips  v.  Bridge,  11  Mass.  242;  Tyler  v. 
Ultner,  12  Mass.  1G3;  Congdon  v.  Cooper,  15  Mass.  10  ;  and  Kunlctt  v.  Bell, 
5  New  Ilanip.  433.  - 

[222] 


CH.  XII.]  CUSTODY    OF   ATTACHED    PROPERTY.  §  271 

keeping  and  forthcoming,  in  all  cases,  unless  hindered 
by  public  force,  or  inevitable  accident,  and  that  he 
could  not  excuse  himself  by  showing  a  rescue  even.^ 
The  same  rule  of  liability  obtains  in  regard  to  the  body, 
when  once  in  custody  upon  execution?     But  when  the 
body  is  arrested  on  mesne  process,  the  sheriff  may  return 
a  rescue.'^     The  reason  assigned  in  the  books  is,  that,  in 
the  case  of  arrest  and  custody,  on  final  process,  the  offi- 
cer has  usually  more  time  for  preparation,  and  may,  if 
he  will,  have  the  aid  of  the  posse  of  the  county ;  but  in 
the  case   of  mesne  process,  he  must   arrest  when  the 
debtor  is  pointed  out  to  him,  and  may  be  often  required 
to  do  it  suddenly,  and  cannot  always  be  supposed  to 
have  the  ^mse  at  his  command,  at  a  moment's  warning. 
To  my  mind,  the  attempt  at  making  a  distinction  in 
the  cases  shows  more  reason  for  dispensing  altogether 
with  any  such  rigorous  requirement,  in  either  case, 
than  it  does  for  so  wide  a  distinction  between  the  two 
cases ;  but  such  is  the  law,  and  so  are  the  reasons  upon 
which  its  sages  have  seen  fit  to  erect  distinctions. 

"  The  only  question  now  is,  whether  we  shall  adopt 
the  analogy  of  this  distinction  in  regard  to  property. 
The  court  are  disposed  to  do  it,  for  tvro  reasons.  1.  If 
we  hold  the  sheriff  and  other  officers  liable,  in  the  case 
of  property  attached  on  mesne  process,  only  for  ordinary 
care  and  diligence,  such  as  other  bailees  for  pay  are 
required  to  exercise,  we  place  the  liability  upon  a  rea- 


1  Mlclmay  v.  Smith,  2   Saund.  343,  n.  3  ;  Clerk  r.  Withers,  2  Ltl.  Eayrn. 
1075. 

2  12  Moo.  10  ;  O'Neil  v.  Marson,  5  Burrow,  2812  ;  2  Saund.  244,  note  a. 
*  Cases  cited  above,  and  note  to  2  Saund.  345. 

[223] 


§  271       CUSTODY  OF  ATTACHED  PROPERTY.      [CH.  XII. 

sonable  basis ;  whereas  the  rigorous  accoimtabihty  im- 
posed upon  certain  classes  of  bailees,  on  account  of 
some  supposed  facility  or  temptation  which  they  have 
been  said  to  possess  for  collusive  rescues  or  robberies,  is 
not  founded  upon  any  just  warrant,  either  of  sound 
judgment  or  constant  experience.  I  refer  to  the  cases 
of  common  carriers,  and  sheriffs,  in  regard  to  property 
taken  on  final  process.  2.  We  think  there  is  far  more 
reason  for  the  distinction  which  we  here  make,  in  re- 
gard to  the  liability  of  sheriffs  for  the  keeping  of  goods 
on  mesne  and  final  process,  in  analogy  to  their  difierent 
liability  for  keeping  the  body  when  arrested  on  those 
different  processes,  than  there  is  for  the  distinction  made 
in  this  latter  case.  For  when  property  is  taken  on  final 
process,  it  is  to  be  kept  but  a  short  time,  at  longest,  so 
that  it  may  be  closely  watched,  and  kept  with  this 
severe  diligence  for  a  few  days,  without  materially  inter- 
ferinor  with  the  other  duties  of  the  sheriff.  But  in  the 
attachment  of  property  on  mesne  process,  in  matters  of 
collection,  there  will  ordinarily  be  a  delay  of  from  six 
to  eighteen  months,  and  in  matters  of  controversy  this 
delay  will  be  extended  to  many  years ;  and  to  require 
the  sheriffs  to  keep  all  property,  by  them  attached  on 
mesne  process,  at  all  hazards,  except  inevitable  accident, 
or  public  force,  would,  of  course,  justify  an  expense  in 
proportion  to  the  degree  of  responsibility  required,  and 
would  thus,  in  many  cases,  defeat  the  object  of  the  at- 
tachment, by  consuming  the  property  in  needless  ex- 
pense. \Ye  think,  then,  there  is  very  good  reason  why 
the  officer  attaching  property  on  mesiie  process,  should 
only  be  liable  to  the  same  extent  as  bailees  for  hire. 
If  he  return  the  attachment,  he  is,  ^^rund  facie,  liable  to 
[221] 


CH.  XII.]      CUSTODY  OF  ATTACHED  PROPERTY.       §  274 

produce  the  property  on  execution,  but  as  we  think, 
may  excuse  himself  by  showing  that  it  is  not  in  his 
power,  and  that  he  has  been  guilty  of  no  fault."  ^ 

§  272.  The  grounds  taken  by  the  court  seem  fairly 
to  justify  the  conclusion.  This  is  the  only  case  which 
has  fallen  under  my  observation  in  which  the  question 
is  discussed  upon  principle  and  analogy.  The  rule  as 
laid  down  is  consonant  with  the  general  tenor  of  the 
decided  cases  which  rest  on  similar  facts;  and  no  good 
reason  occurs  to  me  why  it  ma}^  not  be  generally  ac- 
cepted. 

§  273.  As  previously  stated,  the  officer  must  comply 
with  all  the  requirements  of  the  law,  or  show  some 
legal  excuse  for  not  doing  so.  "We  will,  therefore,  en- 
deavor to  ascertain  what  will,  and  what  will  not,  excuse 
an  officer  for  not  having  attached  property  forthcoming 
to  meet  the  plaintiff's  execution. 

§  274.  Of  sufficient  excuse.  There  can  be  no  doubt 
that  an  officer  may  excuse  his  failure  to  have  property 
in  hand  to  answer  the  execution,  by  showing  that 
though  attached  as  the  property  of  the  defendant,  it 
was,  in  fact,  not  his.  Whether,  if  this  fact  was  known 
to  him  when  he  levied  the  attachment,  and  he,  not- 
withstanding, made  the  levy  and  returned  the  property 
as  attached,  he  could  afterwards  excuse  himself  on  that 
ground,  is  questionable  j^  but  where,  at  the  time  of  the 
levy,  he  believes  the  property  to  be  the  defendant's. 


1  Bridges  v.  Perry,  14  Vermont,  262. 
'  Frencli  r.  Stanley,  21  Maine,  512. 

[225] 


§277  CUSTODY    OF   ATTACHED    PROPERTY.  [CH.  XII. 

and  takes  it  as  such,  and  it  turns  out  afterwards  that  it 
was  not,  and  he  fails  to  have  it  ready  to  meet  the  exe- 
cution, he  can  certainly  escape  hability  by  proving  the 
fact  to  have  been  so.^  So,  if  an  officer  attach  property 
of  the  defendant  wdiich  is  by  law  exempt  from  attach- 
ment, he  cannot  be  held  responsible  for  its  non-delivery 
on  execution,  unless  it  was  attached  with  the  consent 
of  the  defendant.^ 

§275.  Of  insufficient  excuse.  An  officer  cannot  protect 
himself  from  his  obligation  to  have  the  property  forth- 
coming on  execution,  by  making  return  that  he  attached 
it  "«^  the  risk  of  the  plaintiff T  Such  a  return  could  not 
affect  the  rights  of  the  creditor,  or  relieve  the  officer 
from  any  portion  of  his  responsibility." 

§  276.  If  an  officer  attach  property  under  an  informal 
■writ,  and'  afterwards  the  writ  is  altered  and  made  to 
assume  a  legal  form,  and  the  plaintiff*  obtain  judgment 
upon  it,  the  subsequent  alteration  will  not  excuse  him 
from  the  performance  of  the  duty  of  keeping  the  prop- 
erty safely,  that  it  may  be  applied  to  satisfy  the  j^lain- 
tiff's  judgment,  or  returned  to  the  defendant,  if  he 
should  become  entitled  to  it.'^ 

§  277.   The  removal  of  attached  property  out  of  an 


1  Fuller?;.  Holden,  4  Mass.  498  ;  Tyler  r.  Ulmcr,  12  Ibid.  103;  Denny 
ti.  WillaM,  11  Pick.  519;  Canada  v.  Southwick,  IG-Ibid.  55G  ;  Dewey  v. 
Field,  4  Metcah",  381  ;  Jordan  v.  Gallup,  16  Conn.  53G  ;  Cilley  v.  Jenness,  2 
New  Ilamp.  87;  French  v.  Stanley,  21  Maine,  512. 

-  Cilley  V.  Jenness,  2  New  Hamp.  87. 

*  Lovejoy  v.  Ilutchins,  23  Maine,  272. 

<  Childs  V.  Ham,  23  IVLaine,  74.     |ft 
[  226  ] 


CH.  XII.]  CUSTODY    OP   ATTACHED    DROrERTY.  §  278 

officer's  precinct,  witlioiit  his  consent,  does  not  prevent 
him  from  pursuing  and  reclaiming  it  anywhere;  nor 
does  it  excuse  his  failure  to  have  it  forthcoming  on  ex- 
ecution. Therefore,  where,  in  an  action  against  an 
officer  for  such  a  failure,  the  property  •  consisted  of 
a  quantity  of  logs,  he  offered  to  prove  that  the  logs 
were  afloat  in  a  body,  with  a  boom  around  them,  on 
their  way  from  one  point  to  another,  and  that  the  cur- 
rent of  the  water  and  powder  of  the  wind  were  so  great 
that  the  officer  with  any  force  he  could  command,  could 
not  stop  the  logs  in  his  precinct,  and  that  the  parties  in 
possession  of  them  were  able,  and  did  successfully  resist 
his  taking  or  holding  possession  of  the  logs  until  they 
had  arrived  in  another  county ;  —  it  was  held  that  the 
evidence  was  rightly  rejected,  the  facts,  if  true,  consti- 
tuting no  defence.^ 

§  278.  The  capture  by  a  hostile  force  of  that  part  of 
an  officer's  precinct  in  which  he  had  attached  property, 
will  not  excuse  him  from  producing  the  same  on  execu- 
tion, unless  the  common  consequences  of  a  capture,  ac- 
cording to  the  laws  of  war,  should  follow;  such  as 
restraint  upon  the  persons  of  the  inhabitants  captured 
which  would  prevent  their  removal ;  and  upon  their 
effects,  so  that  they  could  not  be  withdrawn  from  the 
control  of  the  captors.  If  the  capture  is  not  attended 
with  these  effects,  there  is  no  reason  w^hy  the  obligation 
of  any  citizen,  created  before  the  capture,  should  be  de- 
stroyed or  impaired." 


^  Lovejoy  v.  Hutcliins,  23  Maine,  272. 
^  Congdon  v.  Cooper,  15  Mass.  10. 

[227] 


§  281       CUSTODY  OF  ATTACHED  PROPERTY.      [CH.  XII. 

§  279.  The  removal  of  an  officer  from  office,  between 
the  time  of  levying  the  attachment  and  that  of  the 
issuing  of  execution,  will  not  excuse  his  failure  to  pro- 
duce the  property  to  meet  the  execution  ;  for  his  special 
property  remains  to  secure  the  plaintiff  in  the  fruits  of 
his  judgment.^  Nor  will  an  officer  be  relieved  from  his 
liability  for  a  failure  of  his  deputy  to  produce  attached 
property  to  answer  the  execution,  by  reason  that  such 
failure  took  place  after  the  latter  had  ceased  to  be  his 
deputy.^ 

§  280.  It  is  no  excuse  for  failing  to  have  property 
forthcoming,  that  it  was  of  a  perishable  character,  and 
was,  therefore,  suffered  to  remain  in  the  defendant's 
possession.  His  duty  is,  whenever  its  further  detention 
would  expose  it  to  ruin,  and  thus  defeat  the  very  object 
of  the  attachment,  to  expose  it  fairly  to  public  sale,  and 
account  for  only  the  net  proceeds.^ 

§  281.  The  expense  attending  the  keeping  of 
attached  property  is  no  excuse  for  failing  to  produce 
it  on  execution.  Therefore,  where  an  officer  had  at- 
tached certain  cattle,  and  did  not  have  them  forthcom- 
ing under  the  execution,  and  he  was  sued  for  his  failure 
in  this  respect,  it  was  held,  that  he  could  not  show, 
either  in  bar  of  the  action  or  in  mitigation  of  damages, 
that  the  country  was,  at  the  time  of  the  attachment,  in 
an  impoverished  state  as  to  fodder  for  cattle,  and  that 


^  Tukey  v.  Smith,  18  Maine,  125. 
-  Morse  v.  Betton,  2  New  Ilamp.  184. 
^  Cilley  V.  Jcnncss,  2  New  Ilamp.  87. 

[228] 


CH.  XII.]     CUSTODY  OF  ATTACHED  rROPERTT.        §  284 

had  he  taken  the  cattle  into  possession,  and  kept  them 
for  execution,  the  expense  would  have  exceeded  the 
value ;  and  indeed  they  could  not  have  been  kept 
alive  for  want  of  food.^ 

§  282.  Where  an  officer  is  instructed  by  the  plaintiff's 
attorney  to  deliver  attached  property  to  a  certain  per- 
son, and  take  his  receipt  therefor,  and  the  officer  acts 
accordingly,  he  cannot  be  held  to  produce  the  property 
to  be  taken  on  execution.^ 

§  283.  In  an  action  against  an  officer  for  failing  to 
keep  attached  property,  so  as  to  have  it  on  execution, 
he  cannot  be  permitted  to  impeach  the  plaintiffs  judg- 
ment, except,  perhaps,  on  the  ground  of  fraud.'^ 

§  284.  In  order  to  fix  the  officer's  liability  for  at- 
tached property,  held  by  him  to  respond  to  the  judg- 
ment, it  is  necessary  that  a  demand  should  be  made  of 
him  upon  the  execution.  Where  no  place  is  prescribed 
by  law  at  which  such  a  demand  must  be  made,  it  may 
be  at  his  place  of  abode,  or  wherever  he  may  be.  If 
the  demand  should  be  made  of  him  at  a  place  where 
the  property  is  not,  and  he  offers  to  deliver  it  to  the 
officer  at  the  place  where  it  is,  it  will  be  the  duty  of 
the  officer  to  repair  to  such  place  to  receive  it ;  but  if 
he  refuse  to  deliver  it  at  any  place,  this  refusal  will  sub- 
ject him  to  an  action,  whether  the  estate  were  at  the 
place  where  demanded,  or  not.^ 

^  Tyler  v.  Ulmer,  12  Mass.  163.    See,  also,  Sewall  v.  Mattoon,  9  Mass.  535.. 
^  Rice  V.  Wilkins,  21  Maine,  558. 
'  Adams  r.  Balch,  5  Maine,  188. 
*  Scott  V.  Crane,  1  Conn.  255. 

20  [229] 


§  286        CUSTODY  OF  ATTACHED  PROPERTY.      [CH.  XII. 

§  285.  When  an  attachment  has  been  dissolved,  by 
reason  either  of  a  judgment  in  favor  of  the  defendant, 
or  otherwise,  the  special  property  of  the  officer  in  the 
effects  attached  is  at  an  end,  and  he  is  bound  to  restore 
them  to  the  defendant ;  and  if  he  fail  to  do  so,  he  will 
be  liable  therefor.  He  cannot  screen  himself  from  this 
liability  by  delivering  the  property  to  the  plaintiff.  It 
is  not  his  duty,  —  indeed  it  would  be  contrary  to  his 
duty,  —  to  make  such  a  delivery  to  the  creditor,  even 
after  his  demand  is  ascertained  and  sanctioned  by  a 
judgment.  Goods  attached  are  in  the  legal  custody  of 
the  officer,  and  he  is  accountable  for  them,  no  less  to 
the  defendant  than  to  the  plaintiff  in  the  attachment : 
and  the  general  property  in  the  goods  is  not  changed, 
until  a  levy  and  sale  by  execution.^ 

§  286.  The  defendant,  however  ,can  have  no  right  of 
action  against  him  until  the  attachment  is  dissolved, 
even  though  he  do  not  keep  the  property  safely.  Until 
that  time,  he  is  liable  to  the  plaintiff,  whose  claim  is 
paramount  to  that  of  the  defendant.^  But  the  officer  is 
not  always  thus  liable  immediately  upon  the  dissolution 
of  the  attachment.  For  where  property  was  delivered 
by  the  officer  to  a  receipter,  approved  by  the  defendant, 
and  the  receipter  failed  to  redeliver  it  when  required, 
it  was  held,  that  the  defendant  could  not  maintain  an 
action  against  the  officer  therefor,  until  the  lapse  of  a 
reasonable  time,  to  enable  the  latter  to  recover  it  from 
the  re,ceipter.^ 


1  Blake  V.  Shaw,  7  Mass.  505. 

2  Bailey  v.  Hall,  IG  Maine,  408. 

^  Bissell  V.  Iluntingtou,  2  New  Ilamp.  142. 

[230] 


CH.  XII.]     CUSTODY  OF  ATTACHED  PROPERTY.       §  288 

§  287.  "Where  an  officer  is  charged  by  the  defendant 
with  having  lost  or  ^Yasted  a  portion  of  the  attached 
property,  it  is  competent  for  him  to  excuse  himself  from 
liability  by  showing  that  he  had  applied  the  amount  to 
the  defendant's  use,  by  paying  with  it  the  expenses  of 
keeping  the  property.-^ 

§  288,  Where  an  officer  fails  to  keep  attached  prop- 
erty to  answer  the  execution,  there  seems  to  be  no  good 
reason  why  he  should  be  subjected  to  any  different  rule 
of  damages  from  that  which  prevails  in  actions  gener- 
ally against  officers  for  neglect  or  failure  of  duty ;  that 
is,  the  actual  injury  sustained  by  the  plaintiff  by  reason 
of  the  neglect  or  failure.  The  value  of  the  property 
attached,  if  less  than  the  amount  of  the  plaintiff's  judg- 
ment, or  the  amount  of  the  latter,  where  the  value  of 
the  property  is  greater,  will  generally  be  prima  facie 
the  measure  of  damages,  subject  to  be  mitigated  by  ev- 
idence produced  by  the  officer.^  Therefore,  where  a 
number  of  successive  attachments  were  laid  on  prop- 
erty ;  and  all  the  plaintiffs,  except  him  whose  writ  was 
last  levied,  believing  that  the  property  would  lessen  in 
value,  and  that  the  proper  season  for  selling  it  would 
be  lost,  if  it  should  be  kept  until  final  judgment  could 
be  obtained,  directed  the  officer  to  sell  it,  and  hold  the 
proceeds  thereof  to  satisfy  the  judgments  to  be  recov- 
ered, in  the  order  of  their  respective  attachments ;  and 
the  defendant  assented  to  the  sale,  which  took  place, 
and  a  greater  sum  was  produced  than  would  have  been, 
if  the  property  had  been  kept  and  sold  upon  execution. 


1  Twombly  v.  Huncwell,  2  Maine,  221. 
^  Sedgwick  on  Damages,  539-543. 

[231] 


§  289        CUSTODY  OF  ATTACHED  PROPERTY.     [CH.  XII. 

but  not  sufficient  to  satisfy  all  the  attachments,  and  the 
last  attacher  got  nothing ;  and  brought  suit  against  the 
officer;  it  was  held,  that,  although  he  had  departed 
from  the  line  of  official  dut}^,  and  the  plaintiff  was, 
therefore,  entitled  to  recover  damages ;  yet  as  the  plain- 
tiff would  have  got  nothing  by  it,  if  the  officer  had  per- 
formed his  duty,  nominal  damages  only  could  be  recov- 
ered.^ But  an  officer  is  not  entitled  to  have  a  reduction 
made  from  the  full  value  of  the  property,  in  mitigation 
of  damages,  for  the  expenses  which  might  have  attended 
the  keeping,  had  it  been  kept  safely." 

§  289.  The  matter  of  the  expenses  attending  the 
keeping  of  attached  property  will  probably  be  generally 
found  to  be  the  subject  of  statutory  regulation;  but 
aside  from  that,  there  can  be  no  doubt  that  the  general 
principle  is,  that  where  an  officer  is  required  to  per- 
form a  duty  involving  disbursements  of  money  out  of 
his  pocket,  he  must  be  reimbursed.  Where  those  ex- 
penses are  connected  with  the  custody  of  property,  they 
must  come  out  of  the  property,  if  it  should,  under  the 
order  or  judgment  of  the  court,  be  sold;^  but  if  there 
should  be  a  judgment  for  the  defendant,  the  plaintiff 
will  be  liable  to  refund  to  the  officer  all  such  disburse- 
ments.^ 


1  Rich  V.  Bell,  IG  Mass.  294. 

=  Lovejoy  v.  Ilutchins,  23  Maine,  272;  Tyler  v.  Ulmer,  12  Mass.  163; 
Sewall  V.  Mattoon,  9  Ibid.  535. 

'  IIann,ess  r.  Smith,  1  Zabriskie,  495. 

*  rhelps  c.  Cc\mpbcll,  1  Pick.  59;  Tarbell  v.  Dickinson,  3  Gushing,  345. 
[232] 


CHAPTER  XIII. 

OF   BOND   FOR   DISSOLVING   AN   ATTACHMENT,   AND   BOND    FOR   THE 
FORTHCOMING    OF   ATTACHED   PROPERTY. 

§  290.  I.  As  to  hand  for  dissolving  an  attachment.  In 
many  of  the  States  provisions  exist  authorizing  an 
attachment  to  be  dissolved,  upon  the  defendant  giving 
bond,  with  approved  security,  for  the  payment  of  such 
judgment  as  may  be  recovered  in  the  attachment  suit. 
If  the  statute  requires  more  than  one  surety,  and  only 
one  is  given,  the  obligors,  when  sued  on  the  bond,  can- 
not object  to  its  validity  on  that  account ;  for  the  plu- 
rality of  sureties  is  for  the  benefit  of  the  creditor,  and 
he  may  dispense  with  more  than  one,  without  invali- 
dating the  instrument.-^ 

§  291.  In  Kentucky,  from  the  time  of  the  execution 
of  the  bond,  the  cause  ceases  to  be  one  of  attachment, 
and  proceeds  as  if  it  had  been  instituted  by  summons.^ 
And  it  has  been  held  in  Missouri,  that  thereafter  the 
defendant  cannot  take  any  exception  to  the  regularity 
of  the  proceedings  under  the  attachment,  or  to  the 
attachment  itself.^ 

^  Ward  V.  "Whitney,  3  Sanford,  Sup.  Ct.  SOD. 

2  Harper  v.  Bell,  2  Bibb,  221. 

3  Payne  i-.  Snell,  3  Missouri,  409.    See,  also,  Wharton  v.  Conger,  9  Smedes 
&aiarshall,  510. 

20  *  [  233  ] 


§  292  REPLEVY   AND    FORTHCOMING    BONDS.         [CH.  XIII. 

§  292.  In  Louisiana,  however,  a  different  rule  pre- 
vails. There,  when  property  is  seized  under  an  attach- 
ment, and  the  defendant  is  not  served  with  process,  the 
court  is  required  to  appoint  an  attorney  to  represent 
him ;  and  it  was  held  to  be  admissible  for  the  attorney 
so  appointed  to  show  that  the  property  attached  was 
not  the  defendant's,  and  that,  therefore,  the  court  had 
no  jurisdiction  of  the  action.^  .Afterwards  it  was  de- 
cided that  the  defendant  might  contest  the  truth  of  the 
allegation  on  which  the  attachment  issued,  in  order  to 
procure  the  dissolution  of  the  attachment;  and  this  ex- 
pressly on  the  ground  that  it  was  necessary  to  relieve 
himself  and  his  surety  from  the  obligation  of  the  bond.^ 
Subsequently  the  court  further  decided  that  the  obligors 
in  a  bond  of  this  description,  to  ivhicli  the  attachment  de- 
fendant was  not  a  imrty,  might,  when  sued  upon  it,  set 
up  as  a  defence  that  the  property  was  not  the  defend- 
ant's, and  that  he  had  not  been  served  with  process, 
and  that  therefore  the  judgment  against  him  was  a 
nullity.'^  These  decisions  were  rendered  under  Article 
259  of  the  Code  of  Practice  of  that  State,  which  is  in 
these  words :  "  The  defendant,  if  he  appear,  either  in 
person  or  by  his  attorney,  may,  in  every  stage  of  the 
suit,  have  such  attachment  set  aside,  by  delivering  to 
the  sheriff  his  obligation  for  the  sum,  exceeding  by  one 
half  that  which  is  demanded,  with  the  surety  of  a  good 
and  solvent  person,  residing  within  the  jurisdiction  of 
the  court  where  the  action  is  brought,  that  he  will  sat- 

^  Sclilater  v.  Broaddus,  3  Martin,  N.  S.  321 ;  Oliver  r.  Gwin,  17  Louisiana, 
28. 

-  Paililcs  V.  Eoux,  14  Louisiana,  82 ;  Myers  v.  Perry,  1  Louisiana  An- 
nual, 372. 

^  Quine  v.  INIavcs,  2  Robinson  (La.)  510. 

[234] 


en.  XIII.]         REPLEVY   AND    FORTHCOMING    BONDS.  §  294 

isfy  such  judgment  as  may  be  rendered  against  him  in 
the  suit  pending." 

§  293.  In  New  York,  a  simiUir  view  was  entertained, 
in  an  action  on  a  bond  conditioned  to  pay  the  plaintiff 
in  the  attachment  the  amount  justly  due  and  owing  to 
him  by  the  defendant,  at  the  time  the  plaintiff  became 
an  attaching  creditor,  on  account  of  any  debt  claimed 
and  sworn  to  by  the  plaintiff,  with  interest,  costs,  &c. 
The  action  was  against  the  surety  in  the  bond,  and  the 
declaration  set  forth  the  affidavit  on  which  the  attach- 
ment issued,  the  issuing  of  the  writ,  the  attachment  de- 
fendant's application  to  the  judge  to  discharge  the  war- 
rant, and  that  for  the  purpose  of  procuring  such  dis- 
charge the  bond  sued  on  was  executed,  and  concluded 
with  averment  of  the  indebtedness  of  the  attachment 
defendant  to  the  plaintiff  The  question  presented  was, 
whether  the  affidavits  on  which  the  attachment  issued 
were  sufficient  to  authorize  the  issuing  of  the  writ.  It 
was  decided  that  they  were  not,  and  therefore,  that  the 
proceedings  in  the  attachment  were  void ;  and  such 
being  the  case,  that  the  bond  was  also  void.^ 

§  294.  But  in  a  suit  on  such  a  bond,  is  the  plaintiff 
bound,  as  was  done  in  the  case  just  cited,  to  show  in 
his  declaration,  or  otherwise,  the  facts  necessary  to  give 
jurisdiction  to  the  officer  who  issued  the  attachment,  or 
that  the  case  was  one  in  which  an  attachment  might  be 
issued  according  to  the  statute  ?  This  question  was 
passed  upon  by  the  New  York  Court  for  the  Correction 
of  Errors,  in  the  negative.      Chancellor  Walworth,  in 

1  Cadwell  v.  Colgate,  7  Barbour,  Sup.  Ct.  253. 

[235] 


§295  REPLEVY   AND    FORTHCOMING   BONDS.  [CH.  XIII. 

delivering  his  opinion,  which  was  almost  unanimously 
sustained  by  the  court,  said :  "  I  am  not  aware  of  any 
principle  of  the  common  law  which  requires  the  obli- 
gee in  such  a  bond,  when  he  brings  a  suit  thereon 
against  the  obligors,  to  do  any  thing  more  in  his  decla- 
ration than  to  state  the  giving  of  the  bond  by  the  de- 
fendants, and  to  assign  proper  breaches  of  the  condition 
to  show  that  the  bond  has  become  forfeited ;  and  to 
enable  the  jury  to  assess  the  damages  upon  such 
breaches,  as  required  by  the  statute  relative  to  suits 
upon  bonds  other  than  for  the  payment  of  money. 
And  where  the  execution  of  the  bond  is  admitted  or 
proved  upon  the  trial,  and  the  breach  of  the  condition 
thereof  is  also  proved,  the  onus  of  establishing  the  fact 
that  the  bond  was  improperly  obtained,  by  coercion  or 
otherwise,  as  by  an  illegal  and  unauthorized  imprison- 
ment of  the  defendants,  or  in  consequence  of  an  illegal 
detention  of  their  goods  under  color  of  an  attachment 
granted  by  an  officer  who  had  no  authority  to  issue  the 
same,  is  necessarily  thrown  upon  them."  ^ 

§  295.  In  Louisiana,  under  the  article  above  quoted, 
it  is  held  that  after  the  giving  of  such  a  bond  the  prop- 
erty attached  is  no  longer  under  the  control  of  the 
court.  There  cotton  was  attached,  and  released  on  a 
bond  being  given  ;  and  afterwards  a  third  party  inter- 
vened and  claimed  the  cotton  to  be  his :  but  the  court 
refused  to  hear  evidence  or  entertain  the  intervention, 
because  the  defendant  had  bonded  the  cotton.  The 
Supreme  Court  sustained  this  decision,  holding  the 
property  to  be  no  longer  under   the   control    of  the 

^  Kanouse  v.  Dormedv,  3  Denio,  5G7. 

[  236  ] 


CH.  XIII.]  REPLEVY   AND    FORTHCOMING    BONDS.  §  298 

court ;  that  the  bond  was  a  substitute  for  the  property  ; 
and  that  the  intervenor  must  look  to  the  property 
itself.1 

§  296.  Such  bond  is  available  only  to  the  plaintiff  for 
the  satisfaction  of  such  judgment  against  the  defendant 
as  he  may  obtain.  If  he  fail  to  obtain  a  judgment  the 
bond  is  discharged.  Third  parties,  claiming  the  at- 
tached property,  can  have  no  recourse  upon  the  bond, 
there  being  no  privity  between  them  and  the  obligors.^ 

§  297.  The  obligation  of  the  bond  cannot  be  dis- 
charged by  a  surrender  of  the  property  attached.^  Nor 
can  the  obligors  when  sued  thereon  defend  themselves 
by  showing  that  the  property  was  not  the  defendant's 
when  it  was  attached.*  And  where  obligors  in  such  a 
bond  were  sued  thereon,  and  defended  themselves  upon 
the  ground  that  an  appeal  had  been  iwaycd  and  alloived 
from  the  judgment  in  the  attachment  suit,  it  was  held 
to  be  no  defence,  and  that  it  should  have  been  shown 
that  the  appeal  wasp^;26/«?^  and  undetermined!' 

§  298.  In  Louisiana,  a  case  arose,  not  strictly  of  the 
nature  of  those  we  are  now  considerinfj;,  but  bearing; 
such  resemblance  to  them  as  to  be  properly  mentioned 


^  Dorr  V.  Kershaw,  18  Louisiana,  57 ;  Beal  v.  Alexander,  1  Robinson  (La.) 
277;  s.  c.  7  Robinson,  349  ;  Benton  v.  Roberts,  2  Louisiana  Annual,  243  5 
Monroe  v.  Cutter,  9  Dana,  93. 

^  Dorr  V.  Kershaw,  18  Louisiana,  57;  Beal  v.  Alexander,  7  Robinson 
(La.)  349. 

^  Dorr  V.  Kershaw,  18  Louisiana,  57. 

*  Beal  V.  Alexander,  1  Robinson  (La.)  277. 

*  Poteet  V.  Boyd,  10  Missouri,  160. 

[237] 


§  299  REPLEVY   AND    FORTHCOMING   BONDS.  [CH.  XIII. 

here.  A  steamboat  owned  by  several  persons  was  at- 
tached for  the  debt  of  one  of  the  owners.  The  other 
owners,  to  reheve  the  boat  from  the  attachment  came 
forward  and  filed  their  claim  for  the  three  fourths  of 
the  vessel,  offering  at  the  same  time  to  give  security  to 
account  for  such  part  as  should  be  found  to  belong  to 
the  defendant  upon  a  final  adjustment  of  their  respect- 
ive claims  and  accounts,  upon  a  due  appraisement  and 
sale  of  the  interest  and  share  of  the  defendant ;  and  the 
court  ordered  the  boat  to  be  delivered  to  them,  on  their 
executing  bond  with  security  "to  abide  the  judgment 
of  the  court  in  the  premises."  Judgment  was  rendered 
against  the  defendant,  only  a  part  of  which  was  satis- 
fied out  of  the  proceeds  of  the  sale  of  his  share  in  the 
boat,  and  the  plaintiff  sued  the  parties  to  the  bond  to 
recover  the  balance.  But  the  court  decided  that  the 
bond  must  be  understood  in  relation  to  their  oblis-ation 
to  account  for  the  share  of  their  coproprietor ;  and 
that  should  it  remain  doubtful,  from  the  manner  in 
which  the  order  of  the  court  and  the  bond  were  worded, 
whether  the  obligors  intended  any  thing  more  than 
making  themselves  responsible  for  the  share  of  the  de- 
fendant, justice  commanded  to  put  upon  the  bond  the 
most  equitable  construction,  and  to  reject  an  interpre- 
tation which  would  tend  to  make  them  pay  the  defend- 
ant's debt,  not  only  out  of  his  share,  but  out  of  their 
own.^ 

§299.     II.    As  to  bond  for  releasiuf/  attached  iwopertij. 
This  description  of  instrument  is  variously  styled  De- 


^  Nancarrow  v.  Young,  6  Martin,  662. 

[238] 


CH.  XIII.]  REPLEVY   AND    FORTHCOIMING    BONDS.  §  300 

livery,  Forthcoming,  or  Replevy  Bond.^  It  is  usually 
conditioned  for  the  delivery  of  the  property  to  the  ofli- 
cer,  either  to  satisfy  the  execution  which  the  plaintiff 
may  obtain  in  the  cause,  or  when  and  where  the  court 
may  direct.  Sometimes  the  alternative  is  embraced  of 
the  delivery  of  the  property  or  the  satisfaction  of  the 
judgment  recovered  in  the  action. 

§  300.  No  set  form  of  words  is  necessary  to  make  a 
valid  bond  of  this  description.  Therefore,  where  a  writ- 
ing was  given,  in  the  nature  of  a  condition  to  a  penal 
bond,  though  no  bond  preceded  the  condition,  it  was 
held  to  be  sufficient,  on  the  following  grounds.  "It 
states  what  act,  if  performed,  shall  have  the  effect 
of  rendering  the  supposed  bond  void.  It  implies  an 
agreement  on  the  part  of  the  obligors  for  the  perform- 
ance of  that  act.  It  in  effect  stipulates  that  the  prop- 
erty attached  shall  be  forthcoming  when  ordered  by  the 
court  to  be  returned  to  its  custody.  It  shows  that  a 
duty  had  devolved  on  the  persons  executing  the  instru- 
ment, and  imports  an  undertaking  for  the  performance 
of  that  duty.  Although  it  is  unskilfully  drawn,  and 
has  omitted  an  essential  part  of  all  penal  obligations, 
yet  we  think  an  action  of  covenant  can  be  maintained 


1  In  M'Rae  v.  M-Lean,  3  Porter,  138,  Hitchcock,  J.,  said,  in  delivering 
the  opinion  of  the  court,  —  "  The  term  replevy,  in  its  general  sense,  includes 
every  return  of  property  levied  on,  for  whatever  cause,  and  under  whatever 
conditions  the  same  may  be  subject  to,  whether  the  lien  is  continued  or  dis- 
charged ;  and  the  question  of  lien  or  no  lien,  depends  more  upon  the  nature 
of  the  stipulations  entered  into  in  the  bond,  than  upon  the  particular  circum- 
stances which  may  attend  the  case.  All  our  injunction  and  writ  of  error 
bonds  are  replevy  bonds;  yet  there  is  no  Hen  retained  on  the  property 
attached,  the  conditions  being  to  pay  and  satisfy  the  judgment  or  decree  of 
the  court,  whenever  made." 

[239] 


§  303  REPLEVY   AND    FORTHCOMING   BONDS.         [CH.  XIII. 

upon  it.      Any  o4;her  construction  would  violate  the 
obvious  intention  and  understanding  of  the  parties."  ^ 

§  301.  The  signers  of  such  a  bond  cannot  object  that 
it  is  not  their  deed,  because  it  was  written  over  their 
signatures  delivered  to  the  officer  in  blank,  instead  of 
their  signatures  being  appended  after  the  instrument 
was  written.  In  such  case  the  officer  acts  as  the  agent 
of  the  obligors  in  filling  up  the  writing,  and  may  prove 
his  agency,  and  if  he  be  dead  his  declarations  in  re- 
lation to  it  may  be  given  in  evidence  as  part  of  the  res 
gestce?' 

§  302.  This  bond  diffi^rs  from  the  contract  of  bail- 
ment of  attached  property,  prevalent  in  New  England 
and  New  York,  to  be  treated  of  in  a  subsequent  chap- 
ter, —  1.  In  deriving  its  existence  from  statute,  and  not 
from  practice  ;  2.  In  being  a  specialty,  instead  of  a  sim- 
ple contract ;  3.  In  the  officer  being  under  legal  obli- 
gation to  release  the  property  from  actual  custody, 
upon  sufficient  security  being  given ;  4.  In  discharging 
the  officer  from  liability  for  the  property,  at  least  un- 
less he  were  guilty  of  impropriety  in  taking  insufficient 
security ;  5.  In  being  recognized  and  proceeded  upon 
in  the  courts  as  a  part  of  the  cause  ;  6.  In  being  a  con- 
tract which  the  plaintiff  may  enforce,  for  the  satisfliction 
of  his  judgment. 

§303.  It  differs,  too,  from  that  given  for  dissolving 
an  attachment,  in  that  it  does  not  discharge  the  lien  of 


1  Yocum  V  Barnes,  8  B.  Monroe,  496. 
'-    Ibid.  ^ 

[240] 


CH.  XIII.]  REPLEVY    AND    FORTHCOMIXG   BONDS.  §305 

the  attachment,  since  the  ver}^  object  of  the  bond  is  to 
insure  the  safe-keeping  and  faithful  return  of  the  prop- 
erty to  the  officer,  if  its  return  should  be  required.^  It 
follows,  therefore,  that  after  property  is  thus  bonded,  it 
cannot  be  seized  under  another  attachment,  or  under  a 
junior  execution,  either  against  the  attachment  debtor, 
or  a  third  person  claiming  it  adversely  to  the  debtor 
and  the  creditor ;  for  to  hold  otherwise  would  put  it  in 
the  power  of  a  stranger  to  the  attachment  suit,  by  a 
levy  and  sale,  to  cause  a  forfeiture  of  the  condition  of 
the  bond? 

§  304.  And  this,  too,  though  the  party  giving  the 
bond  take  the  property  into  another  State ;  for  he  is 
considered  to  have  a  qualified  property  in  the  thing, 
which  the  courts  of  every  State  must  respect,  wherever 
acquired.^  By  executing  such  a  bond  the  defendant  is 
held,  in  Mississij)pi,  to  have  acknowledged  notice  of  the 
suit,  and  to  be  bound  to  enter  an  appearance,  or  be 
liable  to  be  proceeded  against  as  in  case  of  personal 
service  of  process.* 

§  305.  Where  the  bond  calls  for  the  delivery  of  the 
property  at  a  sj)ecified  place,  no  demand  is  necessary.^ 
When  the  property  is  to  be  delivered  "  when  and  where 
the  court  shall  direct,"  an  order  of  court  for  its  delivery 


^  Gray  v.  Perkins,  12  Smedes  &  Marshall,  622;  M'Rae  v.  M'Lean,  3  Por- 
ter, 138;  Rives  I".  Wilborne,  6  Alabama,  45;  Evans  v.  King,  7  Missouri, 
411.     See,  also,  Hagan  v.  Lucas,  10  Peters,  400. 

-  Eives  V.  Wilborne,  6  Alabama,  45 ;  Kane  v.  Pilcher,  7  B.  Monroe,  651. 

^  Gordon  v.  Johnston,  4  Louisiana,  304. 

^  Wilkinson  v.  Patterson,  G  Howard  (Mi.)  193. 

*  jMitchell  I'.  Merrill,  2  Blackford,  87. 

21  [241] 


.§  307  REPLEVY   AND    FORTHCOMESTG   BONDS.  [CH.  XIII. 

is  necessary  to  render  the  obligors  liable.  The  judg- 
ment of  the  court  against  the  defendant  in  the  attach- 
ment ^uitj  and  an  execution  issued  to  the  sheriff,  do  not 
constitute  an  order  to  the  obligors  to  deliver  the  prop- 
erty at  a  given  time  and  place.^ 

§  306.  The  security  in  any  such  bond  may  exonerate 
himself  therefrom,  by  delivering  the  property  to  the 
officer  at  any  time  before  judgment  is  rendered  against 
him  on  the  bond.^  This  delivery  must  be  an  actual 
one  —  that  is,  the  property  must  be  brought,  and 
pointed  out  and  offered  to  the  officer.  Therefore, 
where  a  forthcoming  bond  was  given  for  a  slave,  and 
the  principal,  on  the  day  the  slave  was  to  be  delivered 
met  the  officer,  crossing  the  street  rapidly,  and  said  to 
him,  "  Here  is  the  boy ;  I  have  brought  him  to  release 
J.  on  that  bond;"  and  the  officer  replied,  "Very  well;" 
but  the  slave  was  not  pointed  out,  and  the  officer  did 
not  see  him ;  it  was  held  to  be  no  proper  delivery.^ 

§  307.  Where  it  appeared  that  three  persons  were 
named  as  principals  in  a  bond  for  the  delivery  of  at- 
tached property,  and  only  one  of  them,  with  the  surety, 
signed  it,  it  was  held  that  the  surety  could  not  be  made 
liable,  in  the  absence  of  evidence  to  destroy  the  pre- 
sumption that  he  expected  the  other  principals  to  be 
bound  as  such."* 


^  Brotherton  v.  Thomson,  11  Missouri,  9-i. 

-  Reagan  y.  Ivitcben,  3  Martin,  418;  Hansford  v.  Pcrriu,  6  B.  Monroe, 
595. 

^  Poguc  V.  Joyncr,  2  English,  4G2. 

*  Clements  v.  Cassiliy,  4  Louisiana  Annual,  380,  citing  Bean  v.  Parker,  17 
Mass.  591,  and  AVood  v.  "Washburn,  2  Pick.  24. 

[  242  ] 


CH.  xiil]       replevy  and  forthcoming  bonds.  §  311 

§  308:  The  seizure  of  property  under  attachment, 
upon  which  the  party  having  it  in  possession  has  a  lien, 
cannot  divest  the  lien.  And  if  such  party  release  it  by 
giving  bond,  it  seems  he  will  be  responsible  on  the  bond 
for  no  more  than  the  balance  which  may  remain  in  his 
hands  after  paying  himself  the  amount  due  him.-^ 

§  309.  In  Kentucky,  under  their  practice  of  attach- 
ments in  chancery,  it  was  held  that  suit  on  a  bond  for 
the  forthcoming  of  attached  property  was  prematurely 
brought,  where  the  Chancellor  had  not  disposed  of 
the  case,  and  remitted  the  party  to  his  remedy  on  the 
bond.2 

§  310.  In  the  same  State  it  was  held,  in  relation  to 
such  a  bond,  that  the  surety  ought  not  to  be  proceeded 
against  alone,  where  the  principal  was  within  reach  of 
the  process  of  the  court.^ 

§  311.  In  an  action  on  a  bond  of  this  character,  it  is 
no  defence  for  the  obligors  to  aver  that  the  property 
attached  was  not  the  defendant's,  but  belonged  to  a 
third  person,  who  took  it  into  his  possession,  whereby 
thej^  were  prevented  from  having  it  forthcoming  to  an- 
swer the  judgment  of  the  court.  They  are  estopped 
by  the  bond  from  contesting  the  defendant's  right  to 
the  property.  They  undertake  to  have  it  forthcoming, 
and  it  is  their  duty  to  comply  with  their  obligation,  and 
leave  it  to  the  plaintiff  in  the  attachment  and  the  claim- 


1  Canfiekl  v.  M'LaugMin,  10  Martin,  48. 
^  Hansford  i-.  Perrin,  6  B.  Monroe,  595. 
^  Page  V.  Long,  4  B.  Monroe,  121. 

[243] 


§  314  REPLEVY   AND    FORTHCOMING    BONDS.  [CH.  XIII. 

ant  of  the  property  to  litigate  their  rights ;  not  to  take 
it  out  of  the  possession  of  the  plaintiff,  and  put  it  into 
that  of  an  adverse  claimant,  and  thus  excuse  themselves 
for  a  breach  of  their  covenant.^ 

§  312.  Equally  are  the  parties  to  such  a  bond  es- 
topped from  denying  the  admissions  made  in  the  con- 
dition of  the  bond,  or  of  controverting  their  existence. 
Therefore,  where  a  bond  recited  the  issuing  of  an  at- 
tachment and  its  levy  on  the  property,  it  was  held  that 
the  obligors  could  not,  in  an  action  on  the  instrument, 
deny  that  an  attachment  had  issued  and  had  been 
levied.^ 

§  313.  And  where  a  party  gave  bond  to  hold  at- 
tached property  or  its  proceeds  subject  to  the  judgment 
of  the  court,  it  was  held  that  he  could  not  set  up  as  a 
defence  against  the  bond  that  the  sheriff  to  whom  it 
was  given  had  no  legal  or  equitable  interest  in  the 
property,  nor  that  the  property  belonged  to  himself.^ 

§  314.  If  the  obligors  in  the  bond  are  prevented  by 
the  act  of  God  from  delivering  the  property,  their  lia- 
bility is  discharged.  Therefore,  where  the  bond  w^as 
for  the  forthcoming  of  a  slave,  who  died  before  the 
parties  were  bound  to  deliver  him,  it  was  decided  that 
they  were  not  responsible.* 


1  Sartin  v.  Wier,  3  Stewart  &  Porter,  421. 

^  Crisman  ?;.  Matthews,  2  Illinois  (1  Scammon)  148. 

'  Morgan  v.  Furst,  4  Martin,  N.  S.  116. 

*  Falls  V.  Weissinger,  11  Alabama,  801. 

[244] 


CHAPTER  XIV. 

OF  BAILMENT  OF  ATTACHED  PROPERTY.^ 

§  315.  In  the  New  England  States  and  New  York,  a 
practice  exists,  which  allows  an  officer  who  has  attached 
personal  property  on  mesne  process,  to  dispense  with  his 
own  actual  custody  thereof,  by  delivering  it  to  some 
other  person  —  usually  a  friend  of  the  defendant  —  and 
taking  from  him  a  writing,  acknowledging  the  receipt, 
and  promising  to  redeliver  the  property  to  the  officer 
on  demand.  This  practice  has  not  its  authority  in  any 
statutory  provision ;  but  it  is  nevertheless  in  constant 
use  in  those  States ;  and  though  not  regarded  as  one  to 
which  the  officer  is  officially  bound  to  conform,^  has  yet 
become  so  well  settled,  and  is  so  far  held  in  regard,  that 
the  Supreme  Court  of  New  Hampshire  remarked,  that 
"  there  are  cases  in  which  a  sheriff,  if  he  should  refuse 
to  deliver  goods  to  a  friend  of  the  debtor,  upon  an  offer 


^  It  lias  been  my  good  fortune  to  have  had  this  Chapter  read  in  MS.  by 
two  distinguished  jurists  of  Massachusetts  —  Hon.  Simon  Greenleaf,  and  Jus- 
tice Curtis,  of  the  Supreme  Court  of  the  U.  S.  As  it  treats  of  a  practice  of 
■which  I '  have  had  no  experience,  I  felt  deeply  the  need  of  the  correcting 
hand  of  some  one,  -whose  practical  acquaintance  with  the  subject  would  give 
value  to  his  corrections.  I  am  happy  to  say  that  the  errors  noted  by  those 
gentlemen  were  few,  and  comparatively  unimportant,  and  that  they  have 
been  corrected. 

^  Davis  V.  Miller,  1  A^ermont,  9 ;  Moulton  v.  Chadborne,  31  Maine,  152. 

21-^  [245] 


§  316       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

of  good  security, .would  deserve  severe  censure."^  The 
same  court  said  — "  It  is  true  that  when  goods  are  at- 
tached the  sheriff  may  retain  them  in  his  own  custody 
in  all  cases,  if  he  so  choose.  But  it  would  often  subject 
him  to  sreat  inconvenience  and  trouble  so  to  retain 
them.  In  many  cases,  the  interest  both  of  the  debtor 
and  the  creditor  requires  that  they  should  be  delivered 
to  some  person,  who  will  agree  to  be  responsible  for 
them.  And  it  is  a  common  practice  so  to  deliver  them ; 
a  practice  which  is  not  only  lawful,  but  in  a  high  de- 
gree useful  and  convenient."^  It  seems  from  a  recent 
decision  in  Maine,  that  the  consent  of  the  plaintiff  to 
this  bailment  is  necessary  to  discharge  the  officer  from 
responsibility  to  him  for  the  property.  If  the  goods  be 
delivered  to  a  receiptor,  without  the  plaintiff's  consent, 
the  officer  will  be  liable  to  him  at  all  events  for  them, 
if  they  are  needed  to  satisfy  an  execution  obtained  by 
the  plaintiff.'^ 

§  316.  This  contract  of  bailment  does  not  seem  to  be 
uniform  in  its  terms,  either  throughout  the  States  in 
which  it  is  resorted  to,  or  in  any  one  of  them,  but  varies 
according  to  the  circumstances  of  the  case,  or  the  intent 
of  the  parties.  Sometimes,  and  most  frequently,  the 
bailee  simply  acknowledges  to  have  received  from  the 
officer  certain  goods,  attached  by  the  latter  in  a  case 
named,  which  he  agrees  to  return  to  the  officer  on  de- 
mand. Sometimes  the  value  of  the  goods  is  stated ; 
and  iiot  unusually  the  contract  is  in  the  alternative ; 


1  llunlctt  V.  Bell,  5  New  Ilamp.  433. 

2  Runlctt  V.  Bell,  5  New  Hamp.  433. 

'^  Moultou  V.  Chadborne,  31  Maiuc,  1  Ji 

[  246  ] 


CH.  XIV.]       bail:\iext  of  attached  property.  §  317 

either  to  return  the  goods,  or  pay  the  debt  and  costs  in 
the  case.  In  such  case  the  receipt  is  none  the  less  a 
positive  contract  to  redeliver  the  goods ;  the  alternative 
embraced  in  it  does  not  authorize  the  bailee  to  refuse 
to  surrender  the  goods,  nor  can  it  in  any  sense  be  con- 
strued as  vesting  in  him  a  power  of  sale.^  Occasional!}'', 
too,  the  receipt  gives  the  bailee  the  alternative  of  re- 
turning the  goods  or  indemnifying  the  officer  against 
all  damages  he  may  sustain  in  consequence  of  his  hav- 
ing attached  the  property.  In  such  a  case,  where  an 
action  was  brought  on  the  receipt,  it  was  urged  at  bar 
that  the  receipt  being  in  the  alternative,  gave  the  re- 
ceipter,  at  his  election,  the  right  to  return  the  property 
or  indemnify  the  officer ;  and  that  if  he  did  not  return 
the  property  on  demand,  the  alternative  became  abso- 
lute, and  no  action  would  accrue  on  the  contract  till  the 
officer  had  been  damnified.  But  the  court  saifl, — "  this 
is  not  a  sound  construction  of  the  contract,  and  cannot 
be  conformable  to  the  intent  of  the  parties.  The  officer 
had  no  power  to  make  any  disposition  of  the  property 
otherwise  than  for  safe  keeping,  and  to  construe  this 
contract,  in  effect,  as  a  conditional  sale,  would  pervert 
the  very  object  of  the  parties.  The  only  effect  which 
the  latter  clause  in  the  receipt  can  have,  is  to  measure 
the  extent  of  the  receipter's  liability,  and  is  no  more 
than  a  legal  result  of  a  non-delivery  of  the  propert}^"  ^ 

§  317.  Usually  the  receipt  makes  specific  mention  of 
the  goods  attached ;  and  such  is  always  desirable,  but 
not  necessary  to  the  legality  of  the  contract.     What- 

^  Sibley  i:  Story,  8  Vermont,  15. 
2  Page  V.  Thrall,  11  Vermont,  230. 

[247] 


§  319       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

ever  can,  by  just  implication,  be  construed  as  acknowl- 
edging the  receipt  of  property,  to  be  redelivered  to 
meet  the  exigency  of  the  attachment,  will  be  sufficient. 
As,  for  instance,  a  paper  in  the  following  form  —  "  Value 
received,  I  promise  to  pay  B.,  deputy  sheriff,  $400  on 
demand  and  interest,  —  said  note  being  security  to  said 
B.  for  a  W' rit  C.  vs.  D.  which  is  this  day  sued "  —  was 
held  to  be  in  effect  an  acknowledgment  of  property  to 
that  amount  received  as  attached  on  the  Avrit,  and  a 
valid  receipt.^ 

§  318.  Over  this  contract  the  plaintiff  in  the  action 
has  no  control ;  but  it  is  taken  by  the  officer  for  his 
own  security,  that  he  may  be  enabled  to  discharge  the 
responsibility  he  has  assumed  in  his  official  capacity. 
But  if,  after  the  plaintiff  has  obtained  judgment  in  his 
action,  the  officer  deliver  a  receipt  taken  therein  for 
goods,  to  the  plaintiff's  attorney,  to  be  prosecuted  for 
the  plaintiff's  benefit,  this  is  an  equitable  assignment  of 
it,  which  w411  preclude  the  officer  from  interfering  w4th 
the  avails  of  the  receipt  when  judgment  has  been  ob- 
tained on  it,  though  obtained  in  his  name.^ 

§  319.  An  officer  having  attached  chattels,  becomes 
liable  for  them,  at  the  termination  of  the  suit,  either  to 
the  plaintiff  or  the  defendant ;  to  the  former,  if  he  ob- 
tain judgment,  and  issue  execution,  and  take  the  neces- 
sary steps  to  have  it  levied  pursuant  to  the  attachment; 
to  th,e  latter,  if  the  attachment  be  dissolved,  by  judg- 
ment in  his  favor,  or  otherwise.     Under  such  circum- 


1  Bruce  V.  Pettengill,  12  New  Hamp.  841. 

2  Clark  I'.  Clougli,  3  Maine,  357.     See  Phillips  v.  Bridge,  11  Mass.  242. 

[248] 


CH.  XIV.]    BAILMENT  OF  ATTACHED  PROPERTY.       §  320 

stances  it  is  manifest  that  a  bailment  of  the  property,, 
if  it  were  not  recognized  as  a  legal  act  of  the  officer, 
would  not  in  any  way  affect  his  relations  to  the  plaintiff 
and  defendant ;  and  consequently  he  would  be  under 
the  necessity,  either  of  retaining  the  property  in  his 
own  actual  custody,  or  of  assuming  upon  himself  the 
entire  responsibility  of  suffering  it  to  go  into  the  hands 
of  a  third  person.  But  we  have  seen  that  the  bailment, 
wherever  this  practice  prevails,  is  regarded  as  a  legal 
act ;  and  it  must  needs  be,  therefore,  that  questions  will 
arise  as  to  the  rights,  duties,  and  liabilities  of  all  the 
parties.     These  w^e  will  now  proceed  to  consider. 

§  320.  That  which  seems  to  lie  nearest  the  founda- 
tion of  this  subject,  is  the  relation  which  is  established 
by  the  contract  of  bailment  between  the  officer  and  the 
bailee.  This  has  been  the  subject  of  frequeftt  discus- 
sion, and  the  conclusion  seems  to  have  been  generally 
arrived  at,  that  the  bailee  is  to  be  viewed  in  the  light 
of  a  servant  or  agent  of  the  officer.^  In  New  York  he 
was  formerly  regarded  as  a  mere  naked  bailee,  having 
no  interest  or  property  in  the  goods ;  and  in  Massachu- 
setts such  is  the  doctrine  now ;  but  however  true  this 
may  be  as  between  him  and  the  officer,  it  will  be  seen, 
in  another  place,  that  the  weight  of  reason  and  author- 
ity is  greatly  in  favor  of  his  being  considered  as  having 
rights  in  the  property,  as  against  third  persons,  which 


1  Ludden  v.  Leavitt,  9  Mass.  104;  Warren  v.  Lelaud,  Ibid.  2G5  ;  Bond  v. 
Padelford,  13  Mass.  394;  Commonwealth  v.  Morse,  14  Ibid.  217;  Brownell 
V.  Manchester,  1  Pick.  232;  Small  v.  Hutchins,  19  Maine,  255;  Eastman  v. 
Avery,  23  Ibid.  248  ;  Barker  v.  Miller,  6  Johns.  195  ;  Brown  v.  Cook,  9  Ibid. 
361 ;  Dillenback  v.  Jerome,  7  Cowen,  294;  Mitchell  v.  Hinman,  8  Wendell, 
667. 

[249] 


§  322       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

will  enable  him  to  maintain  liis  possession  of  it.  All 
questions,  however,  arising  between  him  and  the  officer, 
will  be  found  to  be  materially  affected  by  their  mutual 
relation,  being  regarded  as  that  of  master  and  servant, 
or  principal  and  agent. 

§  321.  An  officer,  by  the  levy  of  an  attachment,  ac- 
quires a  special  property  in  the  goods  seized.  As  long 
as  the  attachment  continues  in  force,  and  its  lien  upon 
the  property  remains  undisturbed,  that  special  property 
exists,  and  enables  the  officer  to  maintain  his  rights 
acquired  by  the  levy.  An  indispensable  element  of  the 
continued  existence  of  the  lien,  is,  the  officer's  contin- 
ued possession  of  the  property,  actual  or  constructive, 
that  is,  personally  or  by  another.  As  the  bailment  of 
it  is,  for  the  time,  a  surrender  of  his  personal  or  actual 
possession,  the  question  is  presented  —  what  is  the  effect 
of  the  bailment  on  the  lien  of  the  attachment  ? 

§  322.  In  Massachusetts,  it  was  once  held  to  be  very 
clear  that,  after  an  officer  had  delivered  attached  prop- 
erty to  a  receipter,  and  taken  his  receipt  therefor,  and 
promise  to  redeliver  it  on  demand,  it  could  no  longer 
be  considered  as  in  the  constructive  possession  of  the 
officer.^  But  this  view  is  wholly  inconsistent  with 
other  decisions  in  the  same  State,^  and  not  less  with  the 
doctrine  maintained  there  in  numerous  cases,  that  the 
special  property  of  the  officer  in  the  goods  continues 
after  the  bailment,  and  that  the  receipter  is  the  mere 


^  Knap  V.  Sprague,  9  INIass.  258. 

^  Bond  I'.  Padelford,  13  Mass.  394;  Baker  v:  Fuller,  21  Pick.  318  ;    Lud- 
den  V.  Leavitt,  D  Mass.  104. 

[250]' 


CH.  XIV.]    BAILMENT  OF  ATTACHED  PROPERTY.       §  324 

servant  of  the  officer,  having  himself  no  rights  in  the 
goods,  and  therefore  unable  even  to  maintain  legal  rem- 
edies for  the  disturbance  of  his  possession.  Equally  is 
it  opposed  to  the  current  of  authority  elsewhere.  In 
Vermont  and  New  Hampshire,  it  has  always  been  con- 
sidered that  the  delivery  of  attached  property  to  a  re- 
ceipter,  and  taking  his  receipt  therefor,  does  not  dis- 
charge the  lien  of  the  attachment,  or  divest  the  officer 
of  his  custody  of,  or  special  property  in,  the  goods.-^ 

§  323.  In  Maine,  under  a  statute  which  declares 
"that  when  hay  in  a  barn,  sheep,  horses,  or  neat  cattle 
are  attached  on  mesne  process,  at  the  suit  of  a  hond  fide 
creditor,  and  are  suffered  by  the  officer  making  such 
attachment  to  remain  in  the  possession  of  the  debtor, 
on  security  given  for  the  safe  keeping  or  delivery 
thereof  to  such  officer,  the  same  shall  aot,  by  reason  of 
such  possession  of  the  debtor,  be  subject  to  a  second 
attachment,  to  the  prejudice  of  the  first  attachment;" 
it  was  held,  that  this  was  designed  to  preserve  and  con- 
tinue the  lien  on  the  property  attached,  in  the  same 
manner  as  though  it  had  remained  in  the  exclusive  pos- 
session of  the  officer ;  and  that  in  such  case  the  debtor 
cannot  sell  the  property,  and  that  even  a  hond  fide  pur- 
chaser of  it  without  notice  acquires  no  rights  in  it.^ 

§  324.  Since,  then,  the  officer's  special  property  is  not 
lost  by  the  bailment,  and  the  bailee  stands  in  the  posi- 

^  Pierson  v.  Hovey,  1  D.  Chipman,  51 ;  Enos  v.  Brown,  1  1).  Chipman, 
280;  Beacli  i-.  Abbott,  4  Vermont,  605;  Rood  v.  Scott,  5  Ibid.  2G3;  Sibley 
V.  Story,  8  Ibid.  15 ;  Kelly  v.  Dexter,  15  Ibid.  310 ;  "Whitney  v.  Farwell,  10 
New  Ilamp.  9. 

2  Woodman  v.  Trafton,  7  Maine,  178  ;  Carr  v.  Farley,  12  Ibid.  328. 

[251] 


§  325       BAILMENT  OF  ATTACHED  PROPEETY.    [CH.  XIV. 

tion  of  his  servant,  it  follows  that  the  ofiicer,  —  where 
no  time  is  stated  in  the  receipt  for  the  return  of  the 
goods, — niaj,  at  any  time  while  his  special  property  in 
them  continues,  or  while  he  is  responsible  for  them  to 
any  party  in  the  suit,  or  to  the  owner  of  them,  retake 
them  into  his  actual  possession,  from  the  bailee,  or  from 
the  defendant,  if  the  bailee  shall  have  suffered  them  to 
go  back  into  his  possession :  ^  and  this,  as  well  where 
the  bailment  is  the  act  of  his  deputy,  and  the  receipt  is 
taken  by  the  deputy  in  his  own  name,  as  where  the 
contract  is  in  the  name  of  the  principal.^  The  Supreme 
Court  of  Maine  expressed  serious  doubts  whether  the 
officer  could  retake  the  property  without  the  consent 
of  the  debtor  or  receipter ;  ^  but  upon  both  principle 
and  authority,  it  is  difficult  to  perceive  why  it  may  not 
be  done. 

^  325.  This  rio:ht,  where  there  is  but  one  attachment, 
usually  depends  on  the  officer's  responsibility  to  the 
plaintiff;  that  is,  upon  the  necessity  for  his  having  the 
property  in  hand  to  satisfy  the  plaintiff's  demand.  If, 
by  the  dissolution  of  the  attachment,  that  necessity  has 
ceased  to  exist,  and  at  the  same  time  the  bailee  has  suf- 
fered the  property  to  go  back  into  the  defendant's 
hands,  the  officer,  not  being  any  longer  responsible  to 
either  plaintiff  or  defendant  for  it,  cannot  demand  it  of 


^  rierson  v.  Ilovcy,  1  D.  Chipman,  51;  Enos  v.  Brown,  Ibid.  280; 
Bea<*h  V.  Abbott,  4  Yo.rmont,  C05 ;  Rood  v.  Scott,  5  Ibid.  2G3 ;  Sibley 
V.  Story,  8  Ibid.  15;  Kelly  v.  Dexter,  15  Ibid.  310;  Odiorne  v.  Colley,  2 
New  iJamp.  70;  Whitney  v.  Farwell,  10  Ibid.  9;  Bond  v.  Padelford,  13 
Mass.  394. 

2  Baker  r.  Fuller,  21  F.rk.  318;  Davis  v.  IMiller,  1  Vermont,  9. 

'  Weston  V.  Dorr,  25  Maine,  17G. 

[  252  ]  ^^ 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  327 

his  bailee.  But  if,  upon  the  dissolution  of  the  attach- 
ment, the  property  be  still  in  the  bailee's  possession,  the 
officer  being  bound  to  restore  it  to  the  defendant,  or  to 
the  owner,  may  demand  it  from  the  bailee  for  that 
purpose.-^ 

§  326.  If  while  the  property  is  still  in  the  bailee's 
possession,  the  same  officer  lay  a  second  attachment  on 
it,  his  control  over  it  is  not  terminated  by  the  dissolu- 
tion of  that  under  which  the  bailment  was  created,  if 
the  second  attachment  remain  in  force  ;  for  by  the  sec- 
ond attachment  he  becomes  responsible  for  the  prop- 
erty to  the  plaintiff  therein ;  and  the  bailee  is  respon- 
sible to  him.  That  this  should  be  so,  depends,  of  course, 
on  the  legality  of  a  second  attachment,  of  which  there 
can  be  no  doubt. 

§  327.  While  attached  property  remains  in  the  pos- 
session of  the  attaching  officer,  or  of  his  bailee,  no  other 
officer  can  levy  another  attachment  on  it.^  But  he 
who  has  seized  property  under  an  attachment,  so  long 
as  he  has  either  actual  or  constructive  possession  of  it, 
may  attach  it  again,  at  the  suit  of  the  same  or  another 
plaintiff.  This  right  extends  over  property  in  the 
hands  of  a  receipter,  as  well  as  that  in  the  officer's  im- 
mediate custody.  While  it  is  in  the  receipter's  posses- 
sion, the  second  attachment  may  be  made  by  the  same 
officer,  without  an  actual  seizure,  by  the  officer's  return- 
ing that  he  has  attached  the  property,  and  giving  the 

^  Whittier  v.  Smith,  11  Mass.  211  ;  Webster  v.  Harper,  7  Kew  Hamp.  594. 

2  Watson  I'.  Todd,  5  Mass.  271 ;  Vinton  v.  Bradford,  13  Ibid.  114 ;  Thomp- 
son r.  ]\Iarsh,  14  Ibid.  269  ;  Odiorne  v.  Collev,  2  Kew  Hamp.  66  ;  Sinclair 
V.  Tarbox,  Ibid.  135. 

22  [253] 


§  328  BAILMENT    OF   ATTACHED    PROPERTY.  [ciI.  XIV. 

receipter  notice,  with  directions  to  hold  it  to  answer  the 
second  writ.  But  if  the  receipter  has  permitted  the 
property  to  go  back  into  the  defendant's  hands,  a  sec- 
ond attachment  cannot  be  made  without  a  new  seizure.^ 
When  an  officer  hiys  a  second  attachment  on  goods  in 
the  hands  of  a  bailee,  the  latter  may  decline  to  hold 
them  for  the  security  of  that  attachment,  and  may  re- 
turn them  to  the  officer;^  but  if  he  make  no  objection 
to  holding  them,  his  liability  will  be  the  same  under  the 
second  as  under  the  first  attachment. 

§  328.  As  has  been  intimated,  it  is  very  usual  for  the 
receipter  to  permit  the  property  to  remain  in  the  de- 
fendant's hands.  Hence  have  arisen  what  are  termed 
nominal  attachments;  that  is,  where  the  property  is 
not  actually  seized,  or,  if  seized,  is  left,  at  the  time,  in 
the  defendant's  possession,  upon  some  friend  of  the  de- 
fendant giving,  in  either  case,  a  receipt  therefor.  Such 
an  attachment  is  so  far  valid  as  to  bind  the  officer  for 
the  value  of  the  property,  and  to  give  force  to  the  con- 
tract between  him  and  the  bailee ;  but  with  respect  to 
strangers,  other  creditors,  or  purchasers  without  notice, 
it  is  wholly  inoperative.^  The  Supreme  Court  of  Mas- 
sachusetts on  this  point  said — "Such  transactions  are 
always  confidential ;  the  sheriff  takes  his  security  from 
the  friend  of  the  debtor ;  and  this  friend  is  secured  by, 
or  relies  upon,  the  debtor.  They  all  act  at  their  peril, 
and  have  it  not  in  their  power  to  affect  the  security  of 
the  attaching  creditor,  or  by  such  means  to  withhold 

^  Knap  V.  Sprague,  9  Mass.  258;  Whittier  v.  Smith,  11  Ibid.  211 ;  Odiorzic 
V.  Colley,  2  New  Ilamp.  6G;  Whitney  v.  Farwcll,  10  Ibid.  9. 
^  Whitney  v.  Farwell,  10  New  Ilamp.  9. 
«  Bridge  v.  Wvman,  14  Ma.ss.  190. 

[  254  ]  ^' 


CH.  XIV.]    BAILMENT  OF  ATTACHED  TROPERTY.       §  330 

the  property  from  other  creditors."^  Therefore,  in  all 
such  cases,  where  the  property  remains  in  the  debtor's 
hands,  whether  because  never  removed,  or  returned 
after  a  removal,  though,  as  we  have  seen,  the  officer 
may  at  any  time  during  the  existence  of  the  attach- 
ment, retake  it  from  the  defendant,  if  the  matter  be 
between  him,  the  bailee,  and  the  defendant  only,  yet 
the  defendant  m.ay  sell  the  property,^  or  it  may  be  at- 
tached by  other  creditors.^ 

§  329,  It  is  not,  however,  every  possession  by  a  de- 
fendant of  his  property  after  an  attachment  and  bail- 
ment of  it,  that  will  authorize  a  second  attachment.  If 
an  officer  or  his  bailee,  still  retaining  his  possession,  bond 
fide,  and  from  motives  of  humanity,  suffer  the  defendant 
to  use  attached  articles,  which  will  not  be  injured  by 
such  use,  the  attachment  is  not  thereby  dissolved.* 

§  330.  But  if  the  bailee  permits  the  defendant  to 
hold  and  use  the  property  as  owner,  the  attachment  is 
regarded  as  dissolved,  so  far  as  that  the  property  may 
be  attached  by  another  officer  who  has  no  knowledge 
that  a  prior  attachment  is  still  subsisting.^  What  knowl- 
edge of  such  fact  will  suffice  to  prevent  a  second  at- 
taching officer  from  acquiring  a  lien  on  the  property 


^  Bridge  v.  Wyman,  14  Mass.  190.     See  Phillips  v.  Bridge,  11  Ibid.  242. 

-  Denny  r.  Willard,  11  Pick.  519  ;  Robinson  v.  Mansfield,  13  Ibid.  139. 

^  Bridge  v.  Wyman,  14  Mass.  190;  Dunklee  v.  Fales,  5  New  Hamp.  527; 
Kobinson  v.  Mansfield,  13  Pick.  139. 

*  Train  v.  Wellington,  12  Mass.  495;  Baldwin  v.  Jackson,  Ibid.  131; 
Young  V.  Walker,  12  New  Hamp.  502. 

^  Whitney  v.  Farwell,  10  New  Hamp.  9. 

[255] 


§  332       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

thus  found  in  the, defendant's  hands,  may  be  a  question. 
Merely  knowing  the  fact  that  the  property  had  been 
once  under  attachment,  will  not  be  sufficient ;  for  the 
officer  might  well  presume  that  that  attachment  had 
been  settled  or  dissolved.  But  if  he  know  that  the  at- 
tachment and  bailment  still  subsist,  and  that  the  prop- 
erty is  in  the  hands  of  the  defendant  merely  for  his 
temporary  convenience,  he  cannot  acquire  a  lien  by 
attaching  it.^ 

§  331.  If  the  bailee  go  off  and  abandon  all  possession 
and  custody  of  the  property,  and  it  is  attached  by  an- 
other officer,^  or  come  into  the  possession  of  an  adverse 
claimant,^  the  lien  of  the  first  attachment  is  lost. 

§  332.  An  important  question  arises  out  of  this  prac- 
tice of  bailment,  as  to  the  liabihty  of  the  officer  for  the 
fidelity  and  pecuniary  ability  of  the  bailee.  It  seems 
to  be  conceded,  that,  if  the  bailee  is  nominated  or  ap- 
proved by  the  plaintiff,  and  he  afterwards  fail  to  deliver 
the  property  wdien  required  to  meet  the  attachment, 
the  officer  cannot  be  held  responsible  for  it.^  All,  how- 
ever, that  the  creditor,  by  his  consent  to  the  bailment, 
is  supposed  to  agree  to,  is  to  exonerate  the  officer  from 
Hability  for  losses  occasioned  by  the  insolvency  or  w\ant 
of  fidehty  of  the  bailee ;  but  not  for  losses  occasioned 


^  Young  V.  V^Talker,  12  New  Hamp.  502. 
^  Sanderson  v.  Edwards,  16  Pick.  141. 
8  Carrington  v.  Smith,  8  Pick.  419. 

*  Donham  v.  Wild,  1!)  Pick.  520;  Jenney  v.  Dclesdernier,  20  Maine,  183  ; 
Rice  V.  Wilkins,  21  Ibid.  558 ;  Farnham  v.  Oilman,  24  Ibid.  250. 

[256] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  334 

by  the  neglect  of  the  officer  to  enforce  his  own  rights 
and  remedies  against  his  bailee.^  But,  if  the  bailee  be 
selected  by  the  officer,  and  afterwards  fail  to  deliver 
the  property,  and  the  value  of  it  cannot  be  made  out 
of  him,  can  the  officer  protect  himself  from  liability  for 
the  value  of  the  property  ? 

§  333.  In  Massachusetts,  Morton,  J.,  said  —  "  The  offi- 
cer who  attaches  personal  property,  is  bound  to  keep  it 
in  safety,  so  that  it  may  be  had  to  satisfy  the  execution 
which  may  follow  the  attachment.  This  duty  he  may 
perform  himself,  or  by  the  agency  of  others.  If  he  ap- 
point an  unfaithful,  or  intrust  it  with  an  irresponsible, 
bailee,  so  that  it  is  lost  through  the  negligence  or  infi- 
delity of  the  keeper,  or  the  insufficiency  of  the  re- 
ceiptor, he  w411  be  responsible  for  the  value  of  the  prop- 
erty."^ This  doctrine  was  affirmed  by  Justice  Story, 
who  said  that  if  goods  intrusted  to  a  bailee  "  were  lost, 
or  wasted,  or  the  bailee  should  become  insolvent,  the 
officer  would  be  responsible  therefor  to  the  creditor."^ 
So  in  Vermont,  where  a  bailee  sold  the  property,  and 
converted  the  proceeds  to  his  own  use,  it  was  held  that 
this  was  the  same  as  a  conversion  by  the  officer,  and 
made  the  latter  liable  for  the  property,  without  a  pre- 
vious demand  of  it  from  him  being  necessary.^ 

§  334.  On  this  point,  we  find  the  Supreme  Court  of 
New  Hampshire  taking  a  different  ground  from  that  of 


^  Pierce  v,  Strickland,  2  Story,  292. 

-  Donham  v.  Wild,  19  Pick.  520.     See  Phillips  v.  Bridge,  11  Mass.  242; 
Cooper  v.  Mowry,  1 6  Ibid.  5. 
^  Pierce  r.  Strickland,  2  Story,  292. 
*  Johnson  v.  Edson,  2  Aikens,  299. 

22=^  [257] 


§  334:  BAILMENT    OF   ATTACHED    PROPERTY.  [cil.  XIV 

Massachusetts  and  Vermont.  The  question  there  came 
up,  in  reference  to  the  insolvency  of  the  bailee.  The 
court  said  —  "To  what  extent  is  an  officer  responsible 
for  goods  by  him  attached  upon  an  original  writ,  has 
not  been  settled  in  any  adjudged  case,  which  has  oc- 
curred to  us.  He  is,  without  doubt,  to  be  considered 
as  a  bailee,  and  answerable  for  the  goods,  either  to  the 
debtor  or  the  creditor,  if  they  be  lost  by  his  neglect  or 
fault. 

"  Is  he  answerable  beyond  this  ?  We  are,  on  the 
whole,  of  opinion  that  he  is  not.  As  no  cases  directly 
in  point  are  to  be  found,  we  must  resort  to  the  rules 
which  have  been  applied  in  analogous  cases. 

"  It  seems  always  to  have  been  understood  as  settled 
law,  that,  when  a  sheriff  takes  bail  in  any  suit,  if  the 
bail  so  taken  be  sufficient,  in  all  appearance,  when  ac- 
cepted as  bail,  the  sheriff  will  not  be  liable  for  their 
insufiiciency  in  the  end  to  satisfy  the  judgment  which 
the  plaintiff  may  recover.  And  if,  in  replevin,  the  sheriff 
take  persons  as  sureties  in  the  replevin  bond,  who  are 
apparently  sufficient,  he  will  not  be  responsible  for  their 
sufficiency,  unless  he  was  guilty  of  negligence  in  making 
inquiries  as  to  their  circumstances. 

"  There  seems  to  us  to  be  a  very  close  analogy  be- 
tween the  cases  of  taking  bail  and  replevin  bonds,  and 
the  case  of  delivering  goods,  which  have  been  attached, 
to  some  person  for  safe-keeping.  It  is  true  that  when 
goods  are  attached,  the  sheriff  may  retain  them  in  his 
own  .custody,  in  all  cases,  if  he  so  choose.  But  it  would 
often  subject  him  to  great  inconvenience  and  trouble  so 
to  retain  them.  In  many  cases,  the  interest  of  both 
the  debtor  and  the  creditor  requires  that  they  should 
be  delivered  to  some  person,  who  will  agree  to  be  re- 
[258] 


CH.  XIV.]    BAILMENT  OF  ATTACHED  PROPERTY.       §  336 

sponsible  for  them.  And  it  is  a  common  practice  so  to 
deliver  them ;  a  practice  which  is  not  only  lawful,  but 
in  a  high  degree  useful  and  convenient.  Indeed,  there 
are  cases  in  which  a  sheriff,  if  he  should  refuse  to  de- 
liver goods  to  a  friend  of  the  debtor,  upon  an  offer  of 
good  security,  would  deserve  severe  censure. 

"  We  are,  therefore,  induced  to  hold,  that  if  a  sheriff 
deliver  goods,  which  he  has  attached,  to  persons  who 
are  apparently  in  good  circumstances,  and  such  as  pru- 
dent men  would  have  thought  it  safe  to  trust,  for  safe- 
keeping, he  is  not  liable,  if  the  goods  be  lost  through 
the  eventual  insolvency  of  the  persons  to  whom  they 
may  have  been  so  delivered."  ^  In  a  subsequent  case 
the  same  court  held  that  the  officer  is  not  responsible 
for  the  tortious  acts  of  his  bailee,  committed  without 
his  knowledge  or  consent.^ 

§  335.  Here,  then,  is  a  conflict  of  judicial  decisions, 
between  which  we  will  not  attempt  to  decide.  The 
weight  of  authority  appears  to  be  against  the  New 
Hampshire  doctrine ;  but  the  reasoning  upon  which  it 
is  based  is  certainly  calculated  to  shake  the  confidence 
which  might  otherwise  be  felt  in  the  opposite  opinion. 

§  336.  What  has  been  said  with  regard  to  the  liabil- 
ity of  the  officer  refers  to  his  relation  to  the  plaintiff. 
He  is  also  liable  to  the  defendant  for  a  return  of  the 
property  to  him  in  the  event  of  the  attachment  being 


1  Ennlett  v.  Bell,  5  New  Ilamp.  433.    See  Howard  v.  Whittemore,  9  Ibid. 
134  ;  Bruce  v.  Pettengill,  12  Ibid.  341. 

2  Barron  v.  Cobleigb,  11  New  Hamp.  557. 

[259] 


§  338       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

dissolved,  or  the  demand  upon  which  it  was  issued  be- 
ing satisfied.  Where,  however,  the  bailment  takes 
place  with  the  consent  of  the  defendant,  the  officer  is 
not  answerable  to  him  for  the  property,  until  a  reason- 
able time  for  recovering  it  from  the  bailee  shall  have 
elapsed,  after  the  defendant  has  become  entitled  to 
have  it  returned  to  him.-^ 

§  337.  Having  thus  stated,  first,  the  general  propo- 
sitions bearing  upon  this  contract,  and  then  the  rights 
and  liabilities  of  the  officer  in  relation  to  bailed  prop- 
erty, we  will  now,  before  proceeding  to  the  examina- 
tion of  his  remedies,  bestow  attention  on  the  rights  and 
duties  of  the  bailee. 

§  338.  What  rights  does  the  bailee  acquire,  by  the 
bailment,  in  and  over  the  attached  property  ?  In  Mas- 
sachusetts, he  has  always  been  considered  a  mere  naked 
bailee,  having  no  property  in  the  goods,  and  unable  to 
maintain  an  action  for  them,  if  taken  out  of  his  custody 
by  a  wrongdoer.  In  a  case  of  similar  character,  the 
court  there  once  held  differently ;  considering  that  a 
naked  bailee,  though  he  might  not  maintain  replevin, — 
since,  to  sustain  that  action,  property  in  the  plaintiff", 
either  general  or  special,  is  necessary, —  yet  might 
bring  trover  or  trespass;^  but  in  every  case  where  the 
point  has  arisen  in  the  case  of  a  receipter  of  attached 
property,  the  same  court  has  held  that  the  receipter 


^  Bissell  V.  Huntington,  2  New  liamp.  142. 
-  Waterman  v.  Robinson,  5  Mass.  303. 

[260] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  338 

could  maintain  no  action  at  all.^  The  same  doctrine 
was  long  held  in  New  York ;  ^  but  has  finally,  after  an 
extended  discussion  before  the  Court  of  Errors  in  that 
State,  been  discarded ;  and  it  is  now  held  there,  that 
the  receiptor  may  maintain  replevin.^  The  Supreme 
Court  of  New  Hampshire,  at  an  early  day,  held,  that 
for  the  purpose  of  vindicating  his  possession  against 
wrongdoers,  the  receiptor  has  a  special  property  in  the 
goods,  and  may  maintain  trover  against  one  who  takes 
them  from  him.^  In  Vermont,  it  was  decided  that  the 
bailee  has  a  possessory  interest  in  the  property,  which 
will  enable  him  to  maintain  trover  for  it  against  a 
wrongdoer ;  that  in  order  to  maintain  the  action  it  is 
not  necessary  to  hold  that  he  has  property  in  the 
goods ;  and  that  his  possession  and  responsibility  over 
to  the  officer  furnish  sufficient  title  and  just  right  for 
him  to  recover.^  In  Connecticut,  it  is  held  that  the  re- 
ceiptor may  maintain  trespass  for  a  violation  of  his  pos- 
session.*^ Justice  Story,  in  noticing  the  Massachusetts 
doctrine,  says  —  "it  deserves  consideration,  whether  his 
possession  would  not  be  a  sufficient  title  against  a  mere 
wrongdoer ;  and  whether  his  responsibility  over  to  the 
officer  does  not  furnish  a  just  right  for  him  to  maintain 
an  action  for  injuries,  to  which  such  responsibility  at- 


1  Ludden  v.  Leavitt,  9  Mass.  104;  Perley  w.  Foster,  Ibid.  112;  Warren 
j;.  Leland,  Ibid.  265 ;  Bond  ?;.  Padelford,  13  Ibid.  394;  Commonwealth  i'. 
Morse,  14  Ibid.  217;  Brownell  v.  Manchester,  1  Pick.  232;  Whittier  r. 
Smith,  11  Mass.  211. 

2  Dillenback  t\  Jerome,  7  Cowen,  294;  Norton  v.  The  People,  8  Ibid.  137; 
Mitchell  V.  Hinman,  8  Wendell,  66  7. 

2  Miller  v.  Adsit,  16  Wendell,  335. 

*  Poole  V.  Symonds,  1  New  Hamp.  294  ;  Whitney  v.  Farwell,  10  Ibid.  9. 

^  Thayer  v.  Hutchinson,  13  Vermont,  504. 

«  Burrows  v.  Stoddard,  3  Conn.  160. 

[2G1] 


I  340       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

taches."^  And . Chancellor  Kent  says  —  "though  the 
bailee  has  no  property  whatever  in  the  goods,  and  but 
a  mere  naked  custody,  yet  the  better  opinion  would 
seem  to  be  that  his  possession  is  a  sufficient  ground  for 
a  suit  against  a  wrongdoer."^  It  may,  therefore,  be 
considered  that  the  weight  of  authority  is  largely 
against  the  doctrine  advanced  in  Massachusetts ;  which 
seems  alike  repugnant  to  well  established  principles, 
and  to  the  justice  due  to  bailees  in  such  cases. 

§  339.  A  receipter's  position  resembles  in  one  respect 
that  of  bail ;  in  that  he  may  at  any  time  while  liable 
on  his  receipt  to  the  officer,  retake  the  property  from 
the  defendant's  possession,  and  deliver  it  to  the  officer, 
in  discharge  of  his  receipt.^ 

§  340.  Though  the  mere  fact  of  the  bailment  gives  the 
receipter  no  power  of  sale  of  the  goods,*  yet  if  he  make 
such  a  sale  with  the  assent  of  the  debtor,  and  acting  as 
his  agent,  it  will  have  the  same  effect  as  if  the  prop- 
erty had  been  restored  to  the  defendant,  and  the  sale 
had  been  made  by  him;^  in  which  case  we  have  seen 
that  the  sale  would  be  valid.*^ 

§  340  a.  "  The  duties  of  the  bailee  are  sufficiently 
apparent  from  what  has  been  stated.  He  is  bound  to 
keep  the  property,  and  to  return  it  on  demand  to  the 


1  Story  on  Bailments,  §  133. 

-  2  Kent's  Com.  .5G8.     Note  c. 

»  Bond  V.  radelfonl,  13  Mass.  394;  Merrill  v.  Curtis,  18  Maine,  272. 

*  Sibley  v.  Story,  8  Vermont,  15. 

^  Clark  c.  Morse,  10  New  Ilamp.  236. 

«  Denny  v.  Willard,  11  Pick.  519  ;  Robinson  v.  Mansfield,  13  Ibid.  139. 

[2G2] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  341 

officer,  and  to  take  reasonable  care  of  it  while  it  is  in 
his  custody.  For  any  omission  of  duty  in  any  of  these 
particulars,  he  will  be  responsible  to  the  officer.  But 
this  obligation  to  return  the  property  to  the  officer  is 
not  in  all  cases  absolute."^  As  has  been  before  stated, 
it  depends  upon  the  officer's  liabihty  for  the  property, 
either  to  the  plaintiff,  the  defendant,  the  owner  of  it, 
or  a  subsequent^  attaching  creditor,  who,  by  placing 
a  second  writ  in  the  hands  of  the  same  officer  who 
seized  the  goods  in  the  first  place,  has  succeeded  in  ob- 
taining a  valid  lien  on  the  property.  If  the  officer  is 
not  accountable  for  the  goods  to  any  one,  he  cannot 
make  the  bailee  accountable  to  him.  When  we  come 
to  consider  the  bailee's  defences  against  an  action  by 
the  officer  on  the  receipt,  we  shall  see  more  particularly 
what  facts  discharge  his  liability. 

§  341.  The  remedies  of  an  officer  for  a  disturbance 
of  his  possession  of  attached  property  are  not  confined 
to  his  retaking  the  property ;  for  that  would  frequently 
be  impracticable.  As  his  special  property  continues  as 
long  as  the  attachment  exists,  he  may  maintain  trover,^ 
trespass,^  and  replevin^  for  any  violation  of  his  posses- 
sion during  that  period.  And  this,  as  well  where  the 
property  has  been  bailed,  as  w^here  it  remained  in  his 


1  Story  on  Bailments,  §  132. 

2  Ludden  v.  Leavitt,  9  Mass.  104 ;  Badlam  v.  Tucker,  1  Pick.  389  ;  Lowry 
V.  "Walker,  5  Yermont,  181. 

3  Brownell  v.  Manchester,  1  Pick.  232;  Badlam  v.  Tucker,  Ibid.  389; 
Walker  v.  Foxcroft,  2  Maine,  270;  Strout  v.  Bradbury,  5  Ibid.  313  ;  Whit- 
ney V.  Ladd,  10  Vermont,  165. 

*  Perley  v.  Foster,  9  Mass.  112 ;  Gordon  v.  Jenney,  16  Ibid.  465. 

[263] 


§  342       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

own  hands ;  for^  though  he  have  not  the  actual  keeping 
of  the  goods,  yet  the  custody  of  the  bailee  being  that 
of  his  servant  or  agent,  and  his  special  property  being 
still  in  existence,  he  is  regarded  as  having  the  lawful 
possession,  so  as  to  enable  him  to  maintain  an  action 
for  it.^  It  has  been  held,  indeed,  in  Massachusetts,  that 
the  officer  must  sue  for  bailed  property,  and  not  the 
bailee  ;^  but,  as  we  have  just  seen,  the  weight  of  author- 
ity is  decidedly  against  that  view  of  the  subject. 

§  342.  Where  a  bailee  fails  to  redeliver  property  ac- 
cording to  the  terms  of  his  contract,  the  officer  may  re- 
take it,  if  accessible ;  but  no  case  has  met  my  observa- 
tion in  which  it  was  held  that  he  is  under  obligation  to 
do  so.  His  right  of  action  on  the  receipt  accrues  upon 
his  demanding  the  property  from  the  bailee,  and  the 
failure  of  the  latter  to  deliver  it.^  In  cases  where  the 
bailment  is  created  by  a  deputy,  his  principal  may  claim 
to  have  made  the  bailment  himself,  and  may  sustain  an 
action  in  his  own  name  upon  the  receipt  ;^  or  the  dep- 
uty may  sue  thereon;^  but  it  is  not  in  virtue  of  his 
office,  but  of  the  personal  contract  between  him  and 
the  bailee,  that  the  deputy  is  enabled  to  maintain  the 
action.^  It  is  not  necessary,  in  order  to  the  officer's 
maintaining  an  action  on  the  receipt,  that  he  should  be 
still  in  office;  but  if  after  his  going  out  of  office,  the 


1  Brownell  v.  INIanchester,  1  Pick.  232. 

-  Ludden  v.  Leavitt,  9  Mass.  104. 

»  Page  V.  Thrall,  11  Vermont,  230.  • 

*  Davis  V.  Miller,  1  Vermont,  9  ;  Baker  v.  Fuller,  21  Pick.  318. 

^  Spencer  v.  AVilliams,  2  Vermont,  209. 

"  Hutchinson  v.  Parkhurst,  1  Aikens,  258. 

[264] 


CH.  XIV.]  BAILMENT    OF    ATTACHED    PROPEETT.  §  343 

property  be  legally  demanded  of  him  by  another  offi- 
cer, so  as  to  make  him  liable  for  it,  he  may  demand  it 
of  the  bailee,  and  maintain  an  action  on  the  receipt.^ 

§  343.  As  in  other  cases  of  mere  deposit,  no  right  of 
action  accrues  to  the  bailor,  until  after  a  demand  made 
upon  the  bailee,  and  a  failure  by  him  to  return  the 
goods ;  unless  there  has  been  a  wrongful  conversion,  or 
some  loss  by  gross  negligence  on  his  part.^  But  if  the 
bailee  has  suffered  the  property  to  go  back  into  the 
defendant's  possession,  no  demand  is  necessary.^  And 
it  was  held  that  a  demand  was  not  necessary,  where  the 
tenor  of  the  receipter's  obligation  was,  that  he  should 
pay  a  sum  of  money,  or  keep  the  property  safely,  and 
redeliver  it  on  demand ;  and,  if  no  demand  be  made, 
that  he  should  redeliver  it  within  thirty  days  after  ren- 
dition of  judgment  in  the  suit,  at  a  place  named,  and 
notify  the  officer  of  the  delivery.*  It  is  not  requisite 
that  the  demand  be  made  by  the  officer  who  delivered 
the  property  to  the  bailee.  The  terms  of  the  receipt 
are  to  be  taken  with  reference  to  the  subject-matter, 
and  only  import  that  the  bailee  holds  the  property  in 
subjection  to  the  attachment.  Any  officer,  therefore, 
holding  the  execution  in  the  case,  sufficiently  represents 
the  bailor,  to  make  the  demand,  and  a  delivery  to  such 
officer  would  be  in  effect  a  delivery  to  the  bailor.'^ 


1  Bradbury  v.  Taylor,  8  Maine,  130. 
^  Story  on  Bailments,  §  107. 

*  Webster  v.  Coffin,  14  Mass.  196. 

*  Shaw  V.  Laugbton,  20  Maine,  266  ;    Humphreys  v.  Cobb,  22  Ibid.  380  ; 
Wentworth  v.  Leonard,  4  Gushing,  414  ;  Hodskin  v.  Cox,  7  Gushing,  471. 

'  Davis  V.  MUer,  1  Vermont,  9. 

23  [265] 


§  344       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

§  344.   In  the. New  England  States,  an  attachment 
continues  in  force  from  the  time  of  the  levy  until  a  cer- 
tain period  —  in  most,  thirty  days,  in  Connecticut,  sixty 
days  —  after  judgment  in  favor  of  the   plaintiff.     If, 
within  the    specified  period  after  the  judgment,  the 
plaintiff  do  not  cause  execution  to  be  issued,  and  levied 
on  the  attached  property,  if  accessible,  or  if  not  acces- 
sible, to  have  it  demanded,  within  that  time,  of  the  offi- 
cer who  attached  it,  by  the  officer  having  the  execution, 
the  lien  of  the  attachment  is  lost.^     If  the  execution  be, 
within  that  time,  placed  in  the  hands  of  the  officer  who 
made  the  attachment,  he  being  still  in  office,  that  will 
be  sufficient  notice  to  him  that  the  plaintiff  claims  to 
have  the  attached  goods  applied  to  satisfy  the  execu- 
tion.    When  the  execution  is  placed  in  the  hands  of 
another  officer,  it  is  necessary  that  within  that  time 
demand  should  be  made  upon  the  attaching  officer  for 
the  goods,  in  order  to  hold  him  liable  for  them.^     It 
was  attempted  to  extend  this  rule  to  the  receipter,  and 
to  hold  him  discharged,  unless  a  demand  for  the  goods 
was  made  upon  him  within  the  designated  period  after 
the  judgment ;  but  it  was  held  that  if  the  officer's  re- 
sponsibility for  the  goods  was  fixed,  so  as  to  give  him  a 
right  to   demand  them  of  the  receipter,  the  demand 
•upon  the  latter  might  be  made  at  any  time  before  suit 
brought  upon  his  receipt."^     In  Vermont,  however,  it  is 
required  that  the  demand  shall  be  made  within  the  life 
of  the  execution.* 


1  Howard  v.  Smith,  12  Pick.  202. 

"  Humphreys  v.  Cobb,  22  Maine,  380. 

3  Webster  v.  Coffin,  14  Mass.  196. 

*  Bliss  V.  Stevens,  4  Vermont,  88 ;  Allen  v.  Carty,  19  Ibid.  G5.     The  Su- 

[266] 


CH.  XIY.]  BAILMENT    OF    ATTACHED    PROPERTY.  §  347 

§  345.  It  does  not  appear  that  a  personal  demand 
npon  the  receiptor  is  necessary.  If  it  were,  it  would  be 
in  his  power  to  elude  it,  and  thus  avoid  his  responsi- 
bilit}^  It  is  held  that  one  who  makes  a  contract  to 
deliver  specific  articles  on  demand,  should  be  always 
ready  at  his  dwelling-house  or  place  of  business.  A 
demand  upon  him  personally,  for  goods  which  he  could 
not  carry  about  him,  it  is  considered  would  be  liable  to 
more  reasonable  objection  than  a  demand  at  his  abode, 
during  his  absence ;  and,  therefore,  where  a  receiptor 
was  absent  from  the  State,  it  was  determined  that  a 
demand  made  at  his  dwelUng-house,  of  his  wife,  was 
sufficient.-^ 

§  346.  Where  several  persons  jointly  become  re- 
ceiptors, a  demand  of  the  goods  from  any  one  of  them 
is  sufficient.^  In  such  a  case,  where  it  was  agreed  "that 
a  demand  on  any  one  of  them  should  be  binding  on  the 
whole,"  and  one  of  them  indorsed  on  the  receipt  an 
acknowledgment  that  "  a  due  and  legal  demand  "  had 
been  made  on  him  by  the  officer,  it  was  considered 
doubtful  whether  such  an  admission  was  conclusive 
upon  the  other  receiptors.^ 

§  347.  Trover  or  replevin  will  lie  against  a  receiptor, 
upon  his  refusal  or  neglect  to  comply  with  a  demand 
for  the  delivery  of  the  property ;  ^  but  assumpsit  seems 


preme  Court  of  tliis  State  once  held  that  the  demand  must  be  made  within 
thirty  days  after  judgment.     Strong  v.  Hoj-t,  2  Tyler,  208. 
^  ]Mason  v.  Briggs,  16  Mass.  453. 

2  Griswold  v.  Plumb,  13  Mass.  298. 

3  Fowles  V.  Pindar,  19  Maine,  420. 

*  Bi«sell  r.  Huntington,  2  New  Hamp.  142  ;  Cargjll  r.  W^ebb,  10  Ibid.  199  ; 

[2«7] 


§  349       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

to  be  quite  as  much  resorted  to  in  such  cases.  Tres- 
pass will  not  lie,^  Where  the  officer  who  created  the 
bailment  lays  a  second  attachment  on  the  property, 
while  in  the  bailee's  hands,  as  we  have  seen  he  may  do, 
he  may  sustain  the  action  in  virtue  of  such  second  at- 
tachment, though  that  under  which  the  property  was 
bailed  may  have  been  dissolved.^ 

§  348.  An  acknowledgment  by  the  bailee  of  a  de- 
mand upon  him  by  the  officer,  is  sufficient  evidence  of 
a  refusal  to  deliver  the  goods,  without  an  accompanying 
admission  of  such  refusal.'^  The  delivery  of  goods  by 
the  bailee  to  another  person  under  an  adverse  claim  of 
title,  or  a  conveyance  thereof  by  mortgage  to  pay  his 
own  debts,  is  equivalent  to  a  conversion.*  But  if  the 
conversion  be  with  the  knowledge  and  assent  of  the 
officer,  he  cannot  afterwards  hold  the  receipter  liable 
on  his  contract.^ 

§  349.  The  defences  of  which  the  bailee  may  or  may 
not  avail  himself,  in  an  action  on  his  receipt,  next 
claim  attention.  It  is  not  competent  for  him  to  show 
that  the  goods  were  not  attached,  as  stated  in  the  re- 
ceipt, though  the  fact  be  that  the  attachment  was  a 
nominal  one,  and  that  the  officer  never  did  actually 


Webb?;.  Steele,  13  Ibid.  230;  Sibley  v.  Story,  8  Vermont,  15;  Pettes  v. 
Marsh,  15  Ibid.  454  ;  Dezell  v.  Odell,  3  Hill,  N.  Y.  215  ;  Stevens  v.  Eames,  2 
Foster,  568. 

^  Woodbu);y,  J.,  in  Sinclair  v.  Tarbox,  2  New  Hamp.  135. 

=  Wliitticr  V.  Smith,  11  Mass.  211;  Whitney  i'.  Farwell,  10  New  Ilamii.  9. 

'  Cargill  V.  Webb,  10  New  Hamp.  199. 

*  Baker  v.  Fuller,  21  Pick.  318;  Stevens  v.  Eames,  2  Foster,  5G8. 

^  Stevens  v.  Eames,  2  Foster,  568. 

[268]  ^* 


CH.  XIY.]    BAILMENT  OF  ATTACHED  PROPERTY.       §  349 

seize  them ;  ^  nor  can  he  deny  that  the  goods  were  de- 
livered to  him  by  the  officer ;  ^  nor  can  he  set  up  that 
they  were  not  by  law  attachable  ;  ^  nor  can  he  impeach 
the  judgment  in  the  attachment  suit.^  An  amendment 
made  by  the  plaintiff  in  the  action  in  w^hich  the  prop- 
erty was  attached,  but  which  did  not  tend  to  increase 
the  liability  of  the  defendant,  will  not  discharge  the 
receiptor  from  his  accountability ;  ^  but  where,  after  an 
attachment,  an  additional  plaintiff  was  introduced  into 
the  suit,  it  was  held  that,  as  the  officer  could  not  be 
made  liable  for  the  property  to  the  plaintiff  so  brought 
in,  he  could  not  maintain  an  action  on  the  receipt.*^  A 
discharge  of  the  defendant  in  bankruptcy,  after  judg- 
ment against  him  in  the  attachment  suit,  will  not  dis- 
charge the  bailee  ; '  even  if  the  petition  in  bankruptcy 
was  filed  before  judgment  was  rendered/  nor  by  the 
commitment  of  the  debtor  on  execution,  after  demand 
made  on  the  receipter  for  the  goods,  and  his  failure  to 
deliver  them,  though  the  plaintiff  bring  suit  and  recover 
judgment  against  the  debtor  and  his  surety,  for  an  es- 
cape, on  a  bond  given  by  them  for  the  prison  limits  ;^  nor 
will  the  fact  that  the  defendant  has  an  execution  against 
the  plaintiff  for  a  larger  amount  than  that  under  which 

1  Jewett  V.  Torrey,  11  Mass.  219  ;  Lyman  v.  Lyman,  Ibid.  317  ;  Morrison 
V.  Blodgett,  8  New  Hamp.  238 ;  Spencer  v.  Williams,  2  Vermont,  209  ; 
Lowry  v.  Cady,  4  Ibid.  50-i ;  Allen  v.  Butler,  9  Ibid.  122 ;  PhiUips  v.  HaU,  8 
Wendell,  61o';  W^ebb  v.  Steele,  13  New  Hamp.  230. 

-  Spencer  v.  Williams,  2  Vermont,  209 ;  AJlen  v.  Butler,  9  Ibid.  122. 

3  Smith  V.  Cudworth,  24  Pick.  196. 

*  Brown  v.  Atwell,  31  Maine,  351. 

5  Smitli  V.  Brown,  14  New  Hamp.  67  ;  [Miller  v.  Clark,  8  Pick.  412. 
^  Moulton  V.  Cbapin,  28  Maine,  505. 
"  Smith  V.  Brown,  14  New  Hamp.  67. 

*  Towle  V.  Robinson,  15  New  Hamp.  408. 
9  Twining  v.  Foot,  5  Gushing,  512. 


23* 


[269] 


§  351       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

the  goods  are  demanded ;  ^  nor  will  an  agreement  be- 
tween the  plaintiff  and  the  defendant  in  the  attachaient 
suit,  that  the  former  shall  not  enforce  the  receipt,  and 
a  forbearance  accordingly  to  enforce  it." 

§  350.  If  an  officer  after  having  delivered  property 
to  a  receiptor,  seize  it  under  another  attachment,  and 
take  it  out  of  the  custody  of  the  receiptor,  this  puts  an 
end  to  the  contract  of  bailment,  and  the  officer  cannot 
recover  on  the  receipt.'^  But  if  the  bailee  himself,  after 
the  bailment,  levy  an  attachment  on  the  goods  and  sell 
them,  this  is  no  defence  to  the  action  on  his  receipt,  nor 
can  it  be  set  up  in  mitigation  of  damages."^  Where, 
however,  before  the  bailment,  the  property  had  been 
attached  in  another  suit  aai:ainst  the  same  defendant, 
and  upon  the  execution  in  that  case  had  been  seized 
and  sold,  the  bailee  delivering  it  to  the  officer  for  that 
purpose,  it  was  held  that  as  the  first  attaching  officer 
had  a  better  title  to  it  than  the  second,  the  latter  could 
not  maintain  an  action  on  the  receipt  taken  by  him. 
And  it  was  considered  to  be  immaterial  whether  the 
first  attachment  was  fraudulent  or  not,  if  the  bailee  was 
not  a  party  to  the  fraud ;  or  Avhether  the  bailee  had 
notice  or  not  that  the  plaintiff  in  the  suit  in  which  he 
became  bailee,  intended  to  contest  the  first  attachment 
on  the  ground  of  fraud.^ 

§  351.   Where  a  receipt  for  attached  property  bound 

^  Jenney  v.  Rodman,  16  Mass.  4G4. 

^  Ives  V.  Hamlin,  5  Cusliing,  534. 

3  Beach  v.  Abbott,  4  Vermont,  605 ;  Rood  v.  Scott,  5  Hud.  263. 

*  "Whittier  v.  Smith,  11  Mass.  211. 

'  Webster  v.  Harper,  7  Kew  Ilamp.  594. 

[270] 


CH.  XIV.]  BAILMES'T    OF    ATTACHED    PROPERTY.  §  353 

the  makers  to  return  the  property,  or,  at  their  choice, 
to  pay  the  officer  certain  sums,  when  called  for,  after 
judgment  should  be  recovered  on  the  demands  on  which 
the  property  was  attached,  and  it  was  shown  that  soon 
after  the  execution  of  the  receipt  the  property  was  sold 
by  the  officer,  with  the  consent  of  the  plaintifiT,  defend- 
ant, and  receipter,  and  the  money  paid  into  the  hands 
of  the  receipter ;  it  was  held  that  the  sale  was  an  ir^i- 
plied  rescinding  of  the  contract,  and  that  the  officer 
could  neither  maintain  trover  for  the  property,  nor  as- 
sumpsit upon  the  receipt  for  the  money .^ 

§  352.  A  dissolution  of  the  attachment,  and  subse- 
quent delivery  of  bailed  property  by  the  bailee  to  the 
person  entitled  to  it,  discharges  the  bailee  from  liability 
to  the  officer.  Therefore,  where,  under  the  insolvent 
law  of  Massachusetts,  an  assignment  by  an  insolvent 
is  declared  to  vest  all  his  property  in  the  assignees, 
"  although  the  same  may  be  attached  on  mesne  process 
as  the  property  of  said  debtor;  and  such  assignment 
shall  be  effectual  to  pass  all  the  said  estate,  and  dissolve 
any  such  attachment ; "  and  a  defendant,  after  an  at- 
tachment and  bailment  of  his  property,  made  an  assign- 
ment in  insolvency,  and  after  the  assignment  the  bailee 
delivered  the  property  over  to  the  assignees;  it  was 
held  that  he  was  not  liable  on  his  receipt.^ 

§  353.  "Where  a  horse  was  attached  and  delivered  to 
a  bailee,  and  before  the  expiration  of  the  time  limited 


^  Kelly  V.  Dexter,  15  Yermont,  310. 
*  Sprague  v.  Wheatland,  3  Metcalf,  416. 

.       [271] 


§  356       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

for  its  delivery,  it  died,  without  any  fault  of  the  bailee, 
he  was  held  not  to  be  answerable  for  its  value.^ 

§  354.  If  a  receiptor,  when  the  attached  property  is 
demanded  of  him  by  the  officer,  deliver  to  him  other 
like  property,  which  is  sold  by  the  officer,  and  being 
insufficient,  the  officer  sue  him  on  the  receipt,  it  is  no 
defence  for  the  receiptor  to  say  that  the  property  de- 
livered was  in  lieu  of  that  attached,  unless  the  officer 
expressly  agreed  it  should  be  so  received.  In  such  case 
it  is  the  duty  of  the  bailee  to  redeliver  the  same  prop- 
erty he  had  received,  or  pay  the  value  of  it.  If  he  sub- 
stituted other  property,  which  was  sold  on  the  execu- 
tion, he  would  be  liable  still  for  the  property  attached ; 
but  the  proceeds  of  that  sold  would  extinguish  that  lia- 
bility ^:>r6»  ianto? 

§  355.  Where  a  partnership  gave  a  receipt  for  prop- 
erty which  had  been  attached  on  a  writ  against  a  for- 
mer partnership,  composed  in  part  of  the  same  persons, 
the  debts  of  which  the  receiptors,  as  successors  of  the 
former  firm  had  agreed  to  pay,  the  receiptors,  when 
sued  on  the  receipt,  were  not  allowed  to  contest  its 
validity  on  the  ground  that  the  property  of  the  new 
partnership  was  not  liable  to  attachment  upon  a  demand 
against  the  old  firm.^ 

§  356.   We  have  seen  that  the  right  of  the  officer  to 


1  Shaw  V.  Laiigliton,  20  Maine,  2G6. 

2  Sewell  V.  Sowles,  13  Vermont,  171 ;  Smith  v.  IMitchcU,  31  Maine,  287. 
^  Morrison  v.  Blodgett,  8  New  Ilamp.  238. 

[272] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  357 

retake  bailed  property  from  the  possession  of  the  bailee, 
depends  on  his  liability  therefor,  either  to  the  plaintiff, 
the   defendant,  or  another  creditor  of  the  defendant, 
who  has,  through  the  same  ofiicer,  laid  a  second  attach- 
ment on  the  property,  while  it  was  still  in  the  bailee's 
possession.     The  same  rule  applies  where  the  officer 
sues  on  the  receipt.     The  law  recognizes  the  bailee's 
right  to  permit  the  property  to  go  back  into  the  defend- 
ant's possession ;  and  where  he  does  so,  considers  his 
receipt,  in  effect,  as  a  contract  to  pay  the  demand  upon 
which  the  property  was  attached ;  ^  and  it  is,  therefore, 
well  settled  that,  in  such  case,  the  bailee's  liability  to 
the  officer,  where  there  is  only  one  attachment,  depends 
altogether  upon  the  officer's  liability  to  the  plaintiff; 
and  that  if  the  officer  be  no  longer  liable  to  the  plaintiff, 
he  cannot  maintain  an  action  on  the  receipt.^     And 
where  the  officer,  no  longer  liable  to  either  plaintiff  or 
defendant  in  the   action  in  which  the  bailment  was 
created,  seeks  to  enforce  the  receipt  for  the  benefit  of 
a  second  attaching  creditor,  it  is  a  sufficient  defence, 
that,  before  the  second  attachment  was  made,  the  prop- 
erty had  gone  into  the  defendant's  possession,  and  that 
the  first  attachment  was  satisfied  before  the  officer  de- 
manded the  property  of  the  bailee.^ 

§  357.  If  an  officer  attach  property  as  being  the  de- 
fendant's, he  may  notwithstanding  show,  in  an  action  by 
the  plaintiff  against  him  for  not  having  it  in  hand  to 

1  Whitney  v.  Farwell,  10  New  Hamp.  9. 

s  Fisher  v.  Bartlett,  8  Maine,  122;  Carr  v.  Farley,  12  Ibid.  328  ;  Sawyer 
V.  Mason,  19  Ibid.  49  ;  Moultoa  u.  Chapin,  28  Ibid.  505  ;  Lowry  v.  Stevens, 
6  Vermont,  113. 

2  Whitney  v.  Farwell,  10  Xew  Hamp.  9. 

[273] 


§  357       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

satisfy  the  execution  in  the  case,  that  it  did  not  in  fact 
belong  to  the  defendant.^  This  proceeds  from  the  ob- 
vious principle,  that  the  officer  shall  not  be  responsible 
to  the  plaintiff  for  not  doing  that  which  he  was  under 
no  legal  obligation  to  do ;  and  as  he  is  under  no  obliga- 
tion to  keep  the  property  of  one  man  to  answer  the 
debt  of  another,  he  cannot  be  made  liable  for  not  doing 
so.  If,  then,  in  such  a  case  the  property  has  been  bailed, 
it  being,  as  we  have  seen,  a  well  settled  principle  that 
the  bailee's  liabiHty  to  the  officer  depends  upon  the  offi- 
cer's accountability  for  the  property  to  some  one  else, 
it  follows,  that,  where  the  property  is  not  the  defend- 
ant's, the  officer  should  not  be  allowed  to  hold  the  re- 
ceipter  answerable  for  it,  if  it  has  gone  into  the  posses- 
sion of  the  rightful  owner.  The  mere  fact  that,  at  the 
time  of  the  attachment,  the  property  did  not  belong  to 
the  defendant,  will  not,  of  itself,  be  a  sufficient  defence 
against  the  bailee's  liability  on  his  receipt ;  for  the  offi- 
cer, being  liable  to  the  true  owner,  must  obtain  posses- 
sion of  the  property  in  order  to  restore  it.^  But  where 
it  appears  not  only  that  the  property  belonged,  but  has 
been  delivered,  to  a  third  person,  it  is  unquestionable 
that  the  officer  cannot  maintain  an  action  against  the 
bailee  for  it.^  In  Louisiana,  it  would  seem  not  to  be 
necessary  to  show  that  the  property  had  gone  back  into 
the  hands  of  the  actual  owner,  if  it  was  in  the  hands  of 
those  Avho  were  entitled  to, the  possession  of  it ;  as  where 


'  Fuller  V.  Iloldon,  4  Mass.  498;  Denny  v.  Willard,  11  Tick.  519  ;  Can- 
ada V.  Southwick,  IG  Ibid.  556  ;  Dewey  v.  Field,  4-Metcalf,  3S1 ;  Sawyer  v. 
Mason,  19  Maine,  49. 

2  Fisher  v.  Bartlett,  8  Maine,  122. 

»  Learned  v.  Bryant,  13  Mass.  224  ;  Fisher  v.  Bartlett,  8  Maine,  122 ;  Saw- 
yer V.  Mason,  19  Ibid.  49  ;  Quine  v.  Mayes,  2  Robinson  (La.)  510. 

[  274  ]  V- 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PEOPERTY.  §  359 

it  was  consigned  by  the  owner  to  commission  merchants, 
and  the  latter  took  it  from  the  possession  of  the  officer, 
upon  executing  a  bond  to  return  it ;  there  the  commis- 
sion merchants  being  entitled  to  retain  their  possession, 
which  was  in  legal  contemplation  the  possession  of  the 
owner,  would  not  be  required  to  show  that  the  owner 
had  the  actual  custody  of  the  property.^ 

§  3-58.  Where,  however,  in  a  receipt  which  admitted 
the  property  to  have  been  attached  as  the  defendant's, 
the  following  clause  was  embodied  —  "and  we  further 
agree  that  this  receipt  shall  be  conclusive  evidence 
against  us  as  to  our  receipt  of  said  property,  its  value 
before  mentioned,  and  our  liability  under  all  circum- 
stances to  said  officer  for  the  full  sum  above  mentioned  " 
—  it  was  held  that  the  receiptors  would  not  be  allowed 
to  avoid  their  liability,  by  proving  that  the  property 
was  not  the  defendant's.^ 

§  359.  Another  important  question  here  arises — how 
far  is  the  receiptor  estopped  by  his  receipt  from  assert- 
ing property  in  himself  in  the  goods  attached,  when 
they  belong  to  him  ?  This  depends  upon  the  circum- 
stances under  which  he  undertakes  to  assert  it.  If  sued 
by  the  defendant  for  a  return  of  the  goods,  after  disso- 
lution of  the  attachment,  his  receipt  does  not  conclude 
him  from  showing  that  they  belonged  to  himself,  and 
not  to  the  defendant.'^  If  the  receiptor,  after  having 
delivered  up  the  property  according  to  his   contract. 


^  Quine  v.  Mayes,  2  Robinson  (La.)  510. 

-  Penobscot  Boom  Corporation  v.  Wilkins,  27  I\Iaine,  345. 

^  Barron  v.  Cobleigli,  11  Xew  llamp.  55  7. 

[275] 


§  360       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

bring  repleviu  against  the  officer  for  it,  he  is  not 
estopped  from  maintaining  the  action,  by  reason  of 
having  given  the  receipt,  and  therein  having  acknowl- 
edged that  the  articles  attached  were  the  property  of 
the  defendant;  for  the  engagement  was  performed,  and 
the  estoppel  could  not  be  permitted  to  extend  beyond 
the  terms  and  duration  of  the  contract.^ 

§  360.  But  as  between  him  and  the  officer,  in  an  ac- 
tion by  the  latter  on  the  receipt,  where  the  receipt 
admits  the  o-oods  to  be  the  defendant's  or  to  have  been 
attached  as  his,  it  has  been  repeatedly  held  that  the 
bailee  is  estopped  by  the  receipt  from  setting  up  prop- 
erty in  himself.^  And  in  New  York,  it  was  so  ruled  in 
a  case  where  the  receipt  contained  no  such  admission, 
but  simply  an  acknowledgment  of  having  received  the 
property,  and  a  promise  to  redeliver  it  at  a  certain  time 
and  place.^  Later  cases,  however,  qualify  this  general 
rule.  While  it  is  conceded  on  all  hands  that  a  receipter 
who  conceals  from  the  officer  his  ownership  of  the 
property,  and  suffers  it  to  be  attached  as  the  defend- 
ant's, thereby  preventing  the  officer,  perhaps,  from  at- 
taching other  property,  is  precluded,  when  sued  on  the 
receipt,  from  setting  up  property  in  himself;  yet  it  is 
considered  to  be  materially  different  where  he  makes 
known  to  the  officer  at  the  time  of  the  attachment  that 
the  property  is  his,  and  not  the  defendant's.     In  such 


^ijohns  V.  Church,  12  Pick.  557.     See  Lathrop  v.  Cook,  14  Maine,  414. 

2  Johns  I?.  Church,  12  Pick.  557;  Robinson  r.  Mansfiekl,  13  Ibid.  139; 
Burslcy  V.  Hamilton,  15  Ibid.  40;  Dewey  v.  FleUl,  4  jNIotcalf,  381  ;  Sawyer 
V.  Mason,  I'J  Maine,  49;  Penobscot  Boom  Corporation  v.  Wilkins,  27  Ibid. 
345;  Barron  ik  Cobleigh,  11  New  Hamp.  557. 

"  DczoU  V.  Odell,  3  Hill,  N.  Y.  215. 

[276]  ^" 


CH.  XIV.]  BAILMENT   OF  ATTACHED    PROrERTY.  §  362 

case  it  is  held  in  Massachusetts,  that  the  bailee  may  set 
up  property  in  himself,  not  as  a  bar  to  the  action,  but 
as  showing  the  officer  entitled  only  to  nominal  dam- 
ao-es:^  while  in  Vermont,  it  is  considered  to  constitute 
a  full  defence.^ 

§  361.  The  only  remaining  topic  of  consideration  in 
this  connection,  is  the  measure  of  the  officer's  recovery 
in  the  action  against  the  bailee.  Whether  he  shall  re- 
cover only  nominal  damages,  or  the  full  value  of  the 
property,  or  the  amount  of  the  plaintiff's  demand,  not 
exceeding  the  value  of  the  property,  is  to  be  deter- 
mined by  the  facts  of  each  case.  Where,  at  the  insti- 
tution of  his  suit,  he  has  a  full  right  of  action  against 
the  receipter,  but  afterward,  and  before  obtaining  judg- 
ment, he  is,  by  the  plaintiff's  failure  to  take  the  needful 
steps,  released  from  responsibiUty  to  him,  and  at  the 
same  time  the  property  has  gone  back  into  the  defend- 
ant's possession;  as  he  is  no  longer  hable  to  either 
plaintiff  or  defendant,  he  can  recover  only  nominal 
damages  against  the  receipter.^ 

§  362.  Where  the  value  of  the  property  is  stated  in 
the  receipt,  it  is  not  to  be  considered  as  descriptive  of 
the  property,  but  as  a  part  of  the  contract,  and  as  con- 
stituting a  stipulation  for  a  rule  of  damages  against  the 
receipter  in  case  of  a  non-delivery  of  the  property; 
and  hence  an  officer  will  not  be  allowed  in  an  action 
on  the  receipt,  whether  in  form  ex  contractu  or  ex  delicto, 

^  Bursley  v.  Hamilton,  15  Pick.  40. 

*  Adams  v.  Fox,  17  Vermont,  361.     See  Jones  v.  Gilbert,  13  Conn.  507. 
»  Norris  v.  Bridgliam,  14  Maine,  429  ;   Moulton  v.  Chapin,  28  Ibid.  505  ; 
Famham  v.  Cram,  15  Ibid.  79. 

24  [277] 


§  364       BAILMENT  OF  ATTACHED  PROPERTY.    [CH.  XIV. 

to  give  evidence  that  the  property  was  of  greater  value 
than  that  stated  in  the  receipt ;  ^  and  of  course  the  re- 
ceipter  cannot  give  evidence  that  it  was  of  less  value.^ 
In  such  case,  where  all  the  articles  are  valued  at  a  gross 
sum,  the  receiptor  cannot  avoid  his  liability,  pro  tanto, 
by  tendering  to  the  officer  part  of  the  goods,  unless  he 
has  a  reasonable  excuse  for  not  delivering  the  residue.^ 
But  if  the  value  of  each  article  is  separately  stated  in 
the  receipt,  and  the  bailee  tenders  part  of  them  to  the 
officer,  the  latter  can  recover  only  for  the  articles  not 
tendered,  according  to  their  admitted  value.* 

§  363.  "Whether  the  officer  can  recover  the  full  value 
of  the  property  depends  upon  his  being  liable  to  that 
extent  for  it  to  some  one  else.  If  it  has  gone  back  to 
the  defendant's  possession,  and  the  amount  of  the  at- 
tachments upon  it  is  less  than  the  value  stipulated,  the 
recovery  cannot  be  for  a  greater  amount  than  that  nec- 
essary to  satisfy  the  attachments.^  But  where  the 
bailee  has  converted  the  property  to  his  own  use,  or 
still  holds  it,  he  is  not  only  authorized  but  obliged  to 
take  judgment  for  the  full  value ;  and  if  he  take  it  for 
less  he  will  be  liable  to  the  defendant  for  the  deficiency.^ 

§  364.  The  judgment  which  an  officer  may  recover 
against  a  receiptor  is  merely  collateral  to  the  debt  due 

1  Parsons  v.  Strong,  13  Vermont,  235 ;  Drown  v.  Smith,  3  New  Hamp. 
299;  Remick  v.  Atkinson,  11  Ibid.  256;  Jones  v.  Gilbert,  13  Conn.  507. 
-  Smith  V.  Mitchell,  31  Maine,  287. 
3  Drown  v.  Smith,  3  New  Hamp.  299;  Remick  v.  Atkinson,  11  Ibid.  256. 

*  Remick  v.  Atkinson,  11  New  Hamp.  256. 

*  Farnham  v  Cram,  15  Maine,  79. 

»  Bissell  V.  Huntington,  2  New  Hamp.  142  ;  Whitney  v.  Farwcll,  10  Ibid. 
9 ;  Sawyer  v.  Mason,  19  Maine,  49  ;  Catlin  v.  Lowrey,  1  D.  Chipman,  396. 

[278] 


CH.  XIV.]  BAILMENT    OF    ATTACHED    PROPERTY.  §364 

from  the  defendant  to  the  plaintiff  in  the  attachment, 
and  for  the  benefit  and  security  of  the  ofhcer ;  and 
when  the  defendant  has  no  claim  on  him,  and  his  obli- 
gation to  the  plaintiff  is  removed,  by  the  payment  of 
the  debt  for  which  the  attachment  issued,  the  judgment 
becomes  a  mere  dead  letter,  and  cannot  be  enforced.^ 

^  Paddock  v.  Palmer,  19  Vermont,  581. 

[279] 


CHAPTER   XV. 

OF   ATTACHMENTS   IMPROVIDENTLY    ISSUED,   AND   THE   MEANS   OF 
DEFEATING   THEM. 

§  365.  Issuing  an  attachment  improvidently,  is  to  be 
distinguished  from  issuing  it  irregularly.  In  the  latter 
case,  the  defect  appears  upon  the  face  of  the  proceed- 
ings, and  may  be  taken  advantage  of  by  a  motion  to 
quash  or  dissolve.  In  the  former,  all  the  preliminary 
steps  may  be  regular,  and  yet  the  attachment  have  been 
improvidently  granted,  because  the  allegations  on  which 
it  issued  were  untrue.  Such  seems  to  be  the  difference 
between  these  two  classes  of  cases. 

§  366.  Where,  as  in  New  England,  under  the  ordi- 
nary process  of  summons  an  attachment  may  be  made, 
if  the  plaintiff  so  directs,  it  is  of  no  importance  to  the 
defendant  to  be  allowed  to  impeach  the  attachment  for 
improvidence ;  but  where,  as  elsewhere  is  universally 
the  case,  an  affidavit  alleging  certain  facts  is  required, 
to  authorize  an  attachment  to  issue,  this  privilege  is  of 
great  value  to  defendants,  who  might  otherwise  be 
remedilessly  ruined  by  the  recklessness  or  bad  faith  of 
creditors. 

§  367.   The  modes  by  which  attachments  may  be 
attacked,  because  the  grounds  averred  for  issuing  them 
[280] 


CH.  XV.]         ATTACHMENTS    IMPROVIDENTLY   ISSUED.  §  370 

were  in  fact  untrue,  differ,  in  different  States.     We  will 
briefly  consider  them. 

§  368.  In  New  York,  prior  to  the  adoption  of  the 
new  Code  of  Procedure,  the  mode  of  defeating  an  at- 
tachment improvidently  issued,  was  by  supersedeas, 
obtained  from  the  Supreme  Court,  on  affidavits  filed  by 
the  defendant,  showing  the  falsity  of  that  on  which  the 
writ  was  obtained.  The  Supreme  Court  at  an  early 
day  asserted  its  jurisdiction  in  such  cases,^  and  subse- 
quently constantly  exercised  it, 

§  369.  Where  an  attachment  was  obtained  on  the 
allegation  that  the  defendant  had  departed  the  State, 
with  the  intent  of  avoiding  arrest,  and  of  defrauding  his 
creditors,  a  supersedeas  was  awarded  upon  the  relation 
of  the  defendant,  showing  that  he  had  not  departed  the 
State,  but  had  openly  made  a  journey  within  it.^  So 
where,  from  the  evidence  given  by  the  defendants,  it 
appeared  that  they  had  not  absconded  and  were  not 
concealed  at  the  time  the  petition  for  an  attachment 
was  presented.^ 

§  370.  In  Pennsylvania,  it  was  early  held  that  the 
court  would  make  inquiry  in  attachment  cases  into  the 
plaintiff's  cause  of  action,  as  in  cases  of  capias,  and  where 
a  sufficient  cause  did  not  appear,  would  dissolve  the 
attachment."*  This  right  of  inquiry  in  such  cases  is  now 
firmly  established  in  that  State,  and  the  practice  has 

^  Lenox  v.  Howland,  3  Caines,  257. 
^  Ex  parte  Chipman,  1  Wendell,  66. 
'  In  matter  of  Warner,  3  Wendell,  42-1. 
*  VIenne  v.  M'Carty,  1  Dallas,  165. 

24==--  [281] 


§372  ATTACHMENTS   IMrROVIDENTLY   ISSUED.         [CH.  XV. 

been  regulated  by  several  reported  decisions.^  It  is  the 
practice  there,  too,  to  allow  the  defendant  in  a  domestic 
attachment,  to  show  by  affidavits  that  he  had  not  ab- 
sconded, as  alleged,  and  upon  the  same  being  satisfac- 
torily shown,  to  dissolve  the  attachment.  In  a  case  of 
this  description,  the  court  said,  "  The  affidavit  on  which 
a  domestic  attachment  is  grounded,  has  never  been  held 
to  be  conclusive.  Such  a  doctrine  would  be  attended 
with  the  most  pernicious  consequences ; "  and  intimated 
that  the  plaintiff  might  sustain  his  affidavit  by  contrary 
proofs  to  those  presented  by  the  defendant.^ 

§  371.  In  New  Jersey,  the  power  and  duty  of  the 
court  to  inquire  into  the  misuse  and  abuse  of  this  pro- 
cess, was  declared  to  rest  on  the  most  ancient  and  estab- 
lished principles,  and  to  be  as  applicable  to  writs  of 
attachment  as  any  other  process.  There  the  truth  of 
the  allegations  on  which  the  writ  issues,  is  brought  up 
on  motion  to  dissolve  the  attachment,  sustained  by  affi- 
davits.^ 

§  372.  In  Maryland,  it  was  decided,  after  very  elab- 
orate argument,  that  every  fact  was  cognizable  by  the 
court  which  would  show  the  attachment  issued  improv- 
idently,  or  that  the  property  attached  did  not  belong 
to  the  defendant;  and  evidence  dehors  or  extrinsic  to 
the  proceedings  might  be  resorted  to,  and  proof  made 
to  the  court.^ 


^  Vienne  v.  M'Carty,  1  Dallas,  165,  note  a,  and  the  cases  there  cited. 
-  Boyes  v.  Coppinger,  1  Yeates,  277. 

3  Branson  v.  Shinn,  1  Green,  250 ;  City  Bank  of  New  York  v.  Merrit,  1 
Green,  131 ;  Day  v.  Bennett,  3  Harrison,  287. 
*  Campbell  v.  Morris,  3  Harris  &  M'Henry,  535.     This  was  so  said  in  the 

[282] 


CH.  XV.]  ATTACHMENTS    DIPKOVIDENTLY    ISSUED.  §  374 

§  373.  In  South  Carolina,  the  defendant  may  con- 
test the  allegations  in  the  affidavit,  and  if  successful  in 
disproving  them,  the  attachment  will  be  dissolved.  As 
to  the  mode  of  accomplishing  this,  the  decisions  appear 
not  to  be  quite  consistent.  In  a  case  of  domestic  at- 
tachment, it  was  held,  that  "a  shorthand  method  of 
quashing  by  motion  "  was  inadmissible  :  ^  afterwards,  in 
a  case  of  foreign  attachment,  this  course  was  allowed;^ 
though  in  a  subsequent  case  it  was  considered  that, 
whatever  may  have  been  the  practice,  a  judge  ought, 
in  a  doubtful  case,  to  refuse  a  motion  to  quash  an  at- 
tachment by  an  affidavit ;  and  the  propriety  of  a  plea 
in  abatement  and  a  trial  of  the  issue  by  a  jury  was 
recognized.^ 

§  374.  In  Alabama,  it  was  at  one  time  held  that  the 
allegations  in  the  affidavit  on  which  the  attachment 
issued,  were  traversable,  and  might  be  investigated  and 
decided  by  a  jury ;  *  but  this  opinion  was  afterwards  in 
effect  overruled ; '^  and  subsequently  a  statute  was  en- 
acted, which  in  terms  precluded  the  defendant  from 
contesting  the  truth  of  the  affidavit.^ 


opinion  of  the  General  Court,  given  in  this  case.  Afterwards  the  judgment 
rendered  by  that  court  was  reversed  by  the  Court  of  Appeals,  but  no  opin- 
ion was  given,  nor  do  the  grounds  of  the  reversal  appear.  It  is  not,  there- 
fore, to  be  presumed  that  this  particular  view  entertained  by  the  General 
Court  was  disapproved. 

^  Havis  V.  Trapp,  2  Nott  &  M'Cord,  130. 

-  Degnan  ads.  Wheeler,  2  Xott  &  M'Cord,  323. 

^  Shrewsbury  v.  Pearson,  1  ^I'Cord,  331. 

*  Brown  v.  Massey,  3  Stewart,  22G. 

*  Middlebrook  v.  Ames,  5  Stewart  &  Porter,  158. 
Clay's  Digest  of  Laws,  61. 

[283]- 


§  377  ATTACHMENTS   IMPROVIDENTLY   ISSUED.  [CH.  XV. 

§  375.  In  Louisiana,  the  Code  of  Practice  provides 
that  the  defendant  may  prove  in  a  summary  way,  after 
having  given  due  notice  in  writing  to  the  adverse  party, 
that  the  allegations  on  which  the  order  for  attachment 
had  been  obtained,  were  false,  in  which  case  the  attach- 
ment will  be  dissolved.^  And  it  is  not  necessary  that 
such  a  defence  should  be  set  up  by  plea  or  exception.^ 
It  is  considered  there,  that  the  affidavit  has  a  greater 
effect  than  merely  enabling  the  party  to  obtain  process 
against  the  defendant,  and  that  in  making  proof  under 
such  a  defence,  the  defendant  must  show  sufficient  to 
throw  the  burden  of  proof  on  the  plaintiff;  ^  and  in  a 
case  where  the  evidence  on  behalf  of  the  defendant 
effected  no  more  than  merely  making  the  matter  doubt- 
ful, it  was  held  that  the  attachment  should  not  be  dis- 
solved.* 

§  376.  In  Texas,  the  question  was  presented  whether 
the  allesfations  contained  in  the  affidavit  were  traversa- 

o 

ble ;  and  the  court  in  an  elaborate  opinion  held  they 
were  not.^  The  same  view  is  entertained  in  Arkansas,^ 
and  in  Tennessee.^ 


Q^7 


77.    In  Kentucky,  the  affidavit  may  be  contro- 


^  Louisiana  Code  of  Practice,  Art.  258. 
^  Read  v.  Ware,  2  Louisiana  Annual,  498. 

^  Brumgard  v.  Anderson,  16  Louisiana,  341 ;    Offutt  r.  Edwards,  9  Robin- 
son (La.)  90. 

^  INIoorc  V.  Angiolette,  12  Martin,  532, 

"  Cloud  V.  Smith,  1  Texas,  611. 

^  Taylor  i'.  Ricards,  4  English,  378. 

'  Cheatham  v.  Trotter,  Teck  (Tenn.)  198. 

r  284  1 


CH.  XV.]  ATTACHMENTS    IMPROVIDENTLY    ISSUED.  §  379 

verted  by  a  plea  in  abatement,  but  not  after  plea  to  the 
action.^ 

§  378.  In  Illinois,  the  defendant  may,  by  a  plea  in 
abatement,  traverse  the  allegations  of  the  affidavit.^ 
The  plea  must  directly  and  fully  negative  those  allega- 
tions. Therefore,  where  the  affidavit  stated  that  the 
defendant  "was  removing  and  about  to  remove  his 
property  from  the  State,"  and  the  defendant  pleaded  in 
abatement  that  "  he  was  not  removing  from  the  State, 
nor  was  he  removing  his  property  from  the  State,"  it 
was  considered  to  be  no  answer  to  the  affidavit,  and 
demurrable.'^  And  where  the  affidavit  averred  that  the 
defendants  "  were  about  to  remove  their  property  from 
this  State,  to  the  injury  of  the  plaintiff,"  it  was  held  to 
be  competent  for  the  defendants  to  prove,  that  though 
in  the  course  of  their  business,  they  were  removing  a 
part  of  their  property  from  the  State,  yet  one  of  them 
had  sufficient  unincumbered  personal  property  in  the 
State  to  discharge  the  plaintiff's  demand.-^ 

§  379.  In  Missouri,  the  right  conferred  upon  the  de- 
fendant by  statute,  to  contest  the  truth  of  the  plaintiff's 
affidavit  by  a  plea  "  in  the  nature  of  a  plea  in  abate- 
ment," has  given  rise  to  a  number  of  adjudications. 
The  language  of  the  statute  is  as  follows :  "  In  all  cases 
where  property  or  effects  shall  be  attached,  the  defend- 
ant may  file  a  plea,  in  the  nature  of  a  plea  in  abate- 


^  Meggs  V.  Shaffer,  Hardin,  65. 

2  Bates  V.  Jenkins,  1  Illinois  (Breese)  Appendix,  25  ;  White  v.  Wilson,  10 
Illinois  (5  Gilraan)  21  ;  W^alker  v.  W^elch,  13  Illinois,  674. 

3  Walker  v.  Welch,  13  Illinois,  674. 

<  White  V.  Wilson,  10  Illinois  (5  Oilman)  21. 

[285] 


§  379  ATTACHMENTS    IMPROVIDENTLY   ISSUED.         [CH.  XV. 

ment,  without  oath,  putting  in  issue  the  truth  of  the 
facts  alleged  in  the  afiiclavit,  on  which  the  attachment 
was  sued  out.  Upon  such  issue,  the  plaintiff  shall  be 
held  to  prove  the  existence  of  the  facts  alleged  by  him, 
as  the  ground  of  the  attachment ;  and  if  the  issue  be 
found  for  him,  the  cause  shall  proceed ;  but  if  it  be 
found  for  the  defendant,  the  suit  shall  be  dismissed  at 
the  costs  of  the  plaintiff."^  In  order  to  see  the  force 
of  some  of  the  cases  to  be  cited  from  the  Reports  of  this 
State,  it  is  necessary  to  mention  here,  that  the  affidavit 
for  an  attachment  must  state  that  the  affiant "  has  good 
reason  to  believe,  and  does  believe "  the  facts  alleged 
as  a  ground  for  obtaining  the  attachment.  The  plea 
authorized  by  the  statute,  though  therein  designated  as 
"  in  the  ncdure  of,"  has  been  held  in  fact  to  be,  "  a  plea  in 
abatement,"  and  governed  by  the  same  principles,  sub- 
ject to  the  same  rules,  and  liable  to  the  same  conse- 
quences as  a  plea  of  that  description.^  If  after  filing 
such  a  plea  the  defendant  plead  to  the  merits  of  the 
action,  it  is  a  waiver  of  the  plea  in  abatement ;  ^  and 
the  plea  in  abatement  cannot  be  amended  after  demur- 
rer to  it  is  filed.^  This  mode  of  contesting  the  truth  of 
the  facts  sworn  to,  being  provided  by  the  statute,  that 
question  cannot  be  investigated  on  a  motion.'^  And 
after  the  filing  of  a  plea  in  abatement,  it  is  not  compe- 
tent for  the  plaintiff"  to   dissolve  his  attachment,  and 


^  Revised  Statutes  of  Missouri  of  1845,  pp.  139,  140. 
"  Liyengood  17.  Sliaw,  10  Missouri,  273;  Ilatry  v.  Sliuman,  13  Missouri, 
547. 

^  Ilatry  v.  Shuman,  13  Missouri,  547. 

*  Livcngood  v.  Shaw,  10  Missouri,  273. 

*  Graham  v.  Bradbury,  7  jNIissouri,  281 ;   Searcy  v.  Platte  County,  10  INIis- 
souri,  2G0. 

[  286  ]  ^' 


CH.  XV.]  ATTACHMENTS    IMPROVlDExNTLY    ISSUED.  §  379 

carry  on  his  action  as  if  it  had  been  commenced  by 
summons ;  for  the  statute  gives  the  defendant  the  right 
to  try  the  truth  of  the  afi&davit,  and  if  the  issue  be 
found  for  him,  to  have  the  suit  dismissed.^     This  plea 
does  not  put  in  issue  the  belief  of  the  person  making 
the  affidavit,  nor  the  goodness  of  the  reasons  for  his 
belief,  but  the  truth  of  the  facts  charged.^     Nor  can  the 
intentions  of  the  defendant  be  inquired  into  under  it, 
except  in  those  cases  in  which  the  statute  contemplates 
such  in  investigation.     Therefore,  where  the  affidavit 
averred  that  the  defendant  had  absconded  or  absented 
herself  from  her  usual  place  of  abode,  so  that  the  ordi- 
nary process  of  law  could  not  be  served  upon  her ;  and 
it  was  shown  on  the  trial  that  her  conduct  had  been  of 
that  character  which  might  well  induce  the  belief  that 
she  had  absconded  at  the  time  the  writ  issued ;  it  was 
held  that  the  court  did  right  in  refusing  so  to  instruct 
the  jury  as  to  place  before  them  the  question  as  to  the 
intentions  of  the  defendant ;  and  in  instructing  them 
that   the    only   matter   for   their    determination   was, 
whether,  at  the  time  of  the  making  of  the  affidavit,  the 
defendant  actually  had  absconded  or  absented .  herself, 
as  charged.^     Under  this  plea  the  defendant  cannot  take 
advantage  of  a  misnomer.     Elisha  Swan  and  Nelson 
Deming  were  sued,  and  traversed  the  allegation  that 
they  were  non-residents,  and  attempted  to  give  in  evi- 
dence  that   Deming's   name   was   not   "Nelson"   but 
"  Anson  L.  j "  but  it  was  held  to  be  inadmissible.* 


1  Mense  v.  Osbern,  5  Missouri,  544. 

2  Chenault  v.  Chapron,  5  INIissouri,  438  ;  Dider  v.  Courtney,  7  Missouri, 
500. 

^  Temple  v.  Cochran,  13  Missouri,  116. 
*  Swan  V.  Polk,  7  Mssouri,  231. 

[287] 


§  380  ATTACHMENTS   IMPROVIDENTLY   ISSUED.         [CH.  XV. 

§  380.  In  Iowa,  a  statutory  provision  formerly  ex- 
isted, authorizing  the  defendant  "to  join  issue  upon 
the  facts  and  allegations  set  forth  in  the  affidavit/' 
which  issue  was  to  be  tried  by  a  jury,  and  if  found  for 
the  defendant,  the  attachment  was  to  be  dissolved  r^ 
but  in  the  Code  of  that  State,  adopted  in  1851,  the 
grounds  on  which  the  attachment  is  sought  must  be 
incorporated  in  the  petition,  and  may  be  denied  in  the 
same  manner  as  any  other  allegation,  and  if  not  denied 
will  be  considered  as  admitted.^ 


1  Revised  Statutes  of  Iowa,  1843,  p.  78. 

2  Code  of  Iowa,  eh.  104  and  109. 

[288] 


CHAPTER    XAa. 


OF   THE   DISSOLUTIOiSr    OF    AN   ATTACHMENT. 

§  381.  The  dissolution  of  an  attachment  necessarily 
discharges  from  its  lien  the  effects  or  credits  on  which 
it  may  have  been  executed,  whether  reduced  to  posses- 
sion by  the  officer,  or  subjected  in  the  hands  of  gar- 
nishees. When  dissolved,  the  defendant  is  entitled  to 
a  return  of  the  property,  on  demand,  unless  the  judg- 
ment of  dissolution  be  suspended  by  writ  of  error  or 
appeal.  This,  it  is  said,  takes  away  the  defendant's 
right  to  demand  a  return ;  and  the  officer,  if  he  have 
notice  of  the  w^it  of  error  or  appeal,  would  not  be  jus- 
tified in  returning  the  property.  But  if  before  w^rit  of 
error  or  appeal  the  defendant  demands  it,  and  the  offi- 
cer gives  it  up,  the  latter  cannot  afterwards,  on  reversal 
of  the  judgment,  be  held  responsible  for  it.^ 

§  382.  The  dissolution  of  an  attachment,  however, 
does  not,  it  appears,  so  far  destroy  it,  that,  under  no 
circumstances  can  the  plaintiff,  upon  the  reversal  of  the 
judgment,  reassert  his  right  to  the  avails  of  the  attach- 
ment. Thus,  where  two  attachments  were  executed 
on  the  same  effects,  and  that  first  executed  was  quashed, 


^  Sherrod  v.  Davis,  17  Alabama,  312. 

25  [289] 


§  384  DISSOLUTION    OF    ATTACHMENT.  [CH.  XVI. 

and  the  judgment  quashing  it  was  reversed,  but  in  the 
mean  time  the  property  was  sold  and  the  proceeds  paid 
to  the  plaintiff  in  the  second  attachment ;  it  was  de- 
cided that  the  first  attaching  creditor  was  entitled  to 
recover  from  the  second  the  money  paid  over  to  him.^ 

§  383.  Obviously,  a  final  judgment  for  the  defendant, 
as  it  leaves  no  ground  for  further  proceedings  against 
him,  ij)so  facto  dissolves  an  attachment,  and  leaves  the 
attached  property,  in  relation  to  the  defendant  as  well 
as  subsequent  attachers,  in  the  same  condition  as  be- 
fore the  service  of  the  writ.^ 

§  384.  Defects  in  the  plaintiff's  proceedings  are 
equally  fatal  to  an  attachment,  unless  remediable  by 
amendment.  They  are  usually  found  in  the  tw^o  pre- 
liminaries to  the  granting  of  the  writ,  the  affidavit 
and  the  bond ;  of  wdiich  we  have  heretofore  treated.^ 
In  such  cases  the  dissolution  or  quashing  of  the  at- 
tachment is  generally  effected  through  a  motion,  based 
on  defects  apparent  on  the  face  of  the  proceedings. 
Indeed,  on  the  hearing  of  such  a  motion,  nothing 
will  be  considered  but  what  is  thus  apparent.  If 
there  is  any  intrinsic  defect  in  the  proceedings,  not 
discernible  on  their  face,  it  cannot  be  brought  before 
the  court  on  a  motion  of  this  description,  but  must  be 
reached  in  some  other  mode.  For  example,  an  attach- 
ment bond  is  executed  in  the  name  of  the  plaintiff,  by 
an  fittorney  in  fact.     The  attorney  may  have  had  sufS.- 

^  Caperton  v.  M'Corkle,  5  Grattan,  17  7. 

^  Clap  V.  Bell,  4  Mass.  99  ;  Johnson  v.  Edson,  2  Aikens,  299  ;  Siiydam  v. 
Iluggeford,  23  Pick.  465. 
*  See  Chapters  Y.  and  YI. 

[290]  ^'     . 


CH.  XYI.]  DISSOLUTION    OF   ATTACHMENT.  §  386 

cient  authority,  or  he  may  not ;  but  whether  or  not, 
the  court  will  not  inquire  into  that  fact  on  a  motion  to 
dissolve.  The  scrutiny  will  not  extend  beyond  the 
record  ;  and  if  there  is  a  bond  there,  though  it  may  in 
fact  have  been  executed  without  any  valid  authority, 
it  is  sufficient  pv  liac  vice  to  sustain  the  attachment.^ 

§  385.  In  Pennsylvania,  however,  on  a  rule  to  shovr 
cause  why  an  attachment  should  not  be  set  aside,  the 
defendant  was  allowed  to  show  that  the  plaintiff  had 
obtained  judgment  in  another  State  on  the  same  de- 
mand, and  levied  execution  there ;  and  the  attachment 
was  quashed.^  But  it  was  not  regarded  as  any  objec- 
tion to  an  attachment,  that  the  plaintiff  had  sued  out 
an  attachment  in  another  State  for  the  same  cause  of 
action,  unless,  perhaps,  the  defendant  had  there  given 
bail.3 

§  386.  It  is  said  that  a  motion  to  dissolve  an  attach- 
ment is  addressed  to  the  discretion  of  the  court,  and 
may  be  acted  on  or  declined  at  pleasure ;  and  this  dis- 
cretion will  not  be  controlled  by  mandamus,*  or  revised 
by  an  appellate  court  on  error.'^  But  where  the  judg- 
ment of  a  court  has  been  had  in  this  summary  mode, 
its  correctness  may  be  examined  on  error.^ 


^  Lindner  r.  Aaron,  5  Ho-ward  Oli.)  581  ;  Spear  v.  King,  6  Smedes  & 
Marshall,  27G;  Jackson  v.  Stanley,  2  Alabama,  32G. 

"  Downing  v.  Phillips,  4  Yeates,  274. 

8  Fisher  v.  Consequa,  2  Washington  C.  C.  382 ;  Clark  v.  Wilson,  3  Ibid. 
5G0. 

*  Ex  parte  Putnam,  20  Alabama,  592. 

*  Reynolds  v.  Bell,  3  Alabama,  57  ;  Massey  u.  Walker,  8  Hjid.  167. 
°  Remolds  v.  Bell,  3  Alabama,  57. 

[291] 


§   388  DISSOLUTION    OF   ATTACHMENT.  [CH.  XYI. 

§  387.  An  attacliment  may  be  dissolved  as  to  subse- 
quent attachments,  and  yet  remain  in  force  as  against 
the  defendant.  The  consideration  of  a  portion  of  this 
subject  naturally  belongs  to  the  chapter  concerning 
Fraudulent  Attachments,  and  other  portions  will  be 
found  necessarily  mingled  with  other  matters,  treated 
of  in  the  chapter  on  Simultaneous  and  Successive  At- 
tachments, and  in  that  on  Bailment  of  Attached  Prop- 
erty. But  there  is  a  class  of  cases  which  may  properly 
be  considered  in  this  connection,  namely,  the  dissolu- 
tion of  the  attachment,  or  the  loss  of  its  lien,  as  against 
subsequent  attachers,  hj  some  act  or  negligence  of  the  at- 
taching officer. 

§  388.  It  is  undoubtedly  the  duty  of  an  officer  in 
attaching  personal  property,  to  reduce  the  same  to  pos- 
session, so  far  as,  under  the  circumstances,  can  be  done. 
And  since  taking  possession  in  the  first  instance  is  of  no 
value  unless  it  be  continued,  and  as  an  abandonment 
of  the  possession  by  the  officer,  would  leave  other  offi- 
cers and  the  community  without  any  notice  or  intima- 
tion of  an  existing  attachment,  it  is  necessary  that  the 
officer  should,  himself,  or  by  another,  retain  his  control 
or  power  of  taking  immediate  custody  of  the  property, 
wherever  it  is  capable  of  being  reduced  into  actual  pos- 
session. If  he  do  not,  he  will  be  regarded  as  having 
abandoned  his  attachment,  and  its  lien,  as  to  subsequent 
attachers,  or  land  fide  purchasers  from  the  defendant, 
will  be  lost.^     As  to  the  defendant,  however,  no  such 

1  Nichols  V.  Patten,  18  Maine,  231;  Waterlionse  v.  Smith,  22  Ibid.  337; 
Baldwin  r.  Jackson,  12  Mass.  131;  Sanderson  v.  Edwards,  IG  Pick.  144; 
Bruce  i'.  Holden,  21  Ibid.  187  ;  Taintor  v.  Williams,  7  Conn.  271  ;  Pomroy 
V.  Kingsley,  1  Tyler,  294 ;  Fitch  v.  Rogers,  7  Vermont,  403. 

[292] 


CH.  XVI.]  DISSOLUTION    OF   ATTACIDIENT.  §  390 

result  will  take  place.  Hence,  where  a  steamboat  was 
attached,  but  by  agreement  between  the  plaintiff  and 
the  master  of  the  boat,  the  boat  was  allowed  to  proceed 
on  its  voyage,  with  the  understanding  that  on  its  return 
it  should  be  delivered  to  the  sheriff,  subject  to  the  writ, 
it  was  held  that,  as  between  the  parties  to  the  action, 
the  lien  of  the  attachment  was  not  extinguished.-^ 

§  389.  The  necessity  of  great  circumspection  on  the 
part  of  attaching  officers,  in  keeping  possession  of  at- 
tached property,  is  strikingly  illustrated  in  a  case  in 
Massachusetts ;  where  an  officer  suffered  certain  articles 
he  had  attached  to  be  mixed  with  other  articles  of  a 
like  kind  which  had  been  previously  attached  by  an- 
other officer,  who  then  returned  an  attachment  of  the 
whole  by  himself  It  was  held  that  the  officer  who  per- 
mitted the  goods  he  had  attached  to  be  mixed  up  with 
those  seized  by  the  other,  thereby  lost  his  special  prop- 
erty in  the  goods,  and  that  the  other  officer  was  enti- 
tled to  hold  them.^ 

§  390.  It  is  of  special  importance  that  an  officer 
should  not  leave  attached  property  in  the  possession  of 
the  defendant,  unless  authorized  thereto  by  some  statu- 
tory provision.'^  The  possession  of  personal  property  is 
the  only  indicium  of  ownership ;  and  to  suffer  a  debtor 
to. retain  possession  of  his  property  after  it  has  been 
attached,  isp^inid  facie  evidence  that  the  attachment  is 
fraudulent  in  respect  of  other  creditors,  w^hose  attach- 


^  Conn  r.  Caldwell,  6  Illinois  (1  Gilman)  531. 

^  Gordon  v.  Jenney,  16  Mass.  465. 

*  See  Ch.  XIII.,  in  relation  to  Forthcoming  Bonds, 

25===  [293] 


§  391  DISSOLUTION    OF    ATTACHMENT.  [CH.  XVI. 

ments,  or  a  hond  fide  purchase  from  the  defendant,  will 
prevail  against  the  attachment  whose  lien  has  thus  been 
lost.^  And  in  such  case  it  has  been  held  that  the  officer 
has  not  even  constructive  possession  of  the  propert}^^ 
Hence  he  cannot,  consistently  with  the  preservation  of 
his  lien,  constitute  the  defendant  his  agent  to  keep  the 
property.^  But  though  the  lien  will  be  lost  by  suffer- 
ing the  property  to  go  back  into  the  possession  of  the 
debtor,  that  result  will  not  be  produced  by  the  defend- 
ant or  his  family  being  allowed,  without  interfering 
with  the  officer's  possession,  to  use  such  articles  as  will 
not  be  injured  by  such  use.  Therefore,  where  attached 
effects  were  left  in  the  house  inhabited  by  the  defend- 
ant, in  the  charge  of  a  keeper  appointed  by  the  officer, 
and  the  keeper  suffered  the  defendant's  family  to  use 
them,  the  court,  finding  that  the  use  w^as  permitted 
from  motives  of  humanity  and'  compassion,  and  not 
with  a  design  to  cover  the  property  against  creditors 
by  a  pretended  attachment,  held  that  the  attachment 
was  not  thereby  dissolved.* 

§  391.  Where  an  officer  leaves  attached  goods  in  the 
possession  of  the  defendant,  or  has  unauthorizedly 
ceased  to  retain  possession  of  them,  and  another  officer 
attempts  to  attach  them,  notice  to  him  of  the  first  at- 
tachment will  not  prevent  his  acquiring  a  lien  on  them ; 
for,  though  an  attachment  may  have  been  made,  yet 


^  Gower  v.  Stevens,  19  Maine,  92;  Dunklee  v.  Fales,  5  New  Hamp.  527  ; 
Pomr'oy  v.  Kingsley,  1  Tyler,  294;  Taintor  w.  Williams,  7  Conn.  271. 

*  Knap  r.'Sprague,  9  Mass.  258;  Tillsbury  v.  Small,  19  Maine,  435. 

^  Gower  V.  Stevens,  19  Maine,  92. 

^  Baldwin  v.  Jackson,  12  Mass.  131.  See  Train  v.  "Wellington,  Ibid.  495; 
Young  v.  Walker,  12  New  Hamp.  502. 

£294] 


CH.  XYI.]  DISSOLUTION    OF   ATTACHMENT.  §  393 

the  second  officer  may  justly  assume  it  to  have  been- 
abandoned,  when  the  possession  of  the  first  officer  was 
rehnquished.^  But  if  the  second  officer  know  that 
there  is  a  subsisting  attachment,  and  an  unrescinded 
contract  of  bailment,  although  the  defendant  might  at 
the  time  have  the  possession  of  the  property,  he  cannot 
acquire  a  lien  by  attaching  it.^ 

§  392.  The  doctrine  so  far  stated,  applies  to  the  acts 
of  the  officerihimself  We  come  now  to  a  class  of  cases 
which  for  convenience  require  a  separate  notice,  as  in- 
volving the  results  of  acts  done  by  parties  other  than 
the  officer,  though  the  general  principles  are  on  the 
whole  similar.  It  is  customary  and  often  necessary  for 
attaching  officers  to  place  attached  property  for  safe 
keeping  in  charge  of  servants  appointed  by  themselves, 
whose  possession  is  the  possession  of  the  officer.  In 
such  case  the  lien  of  the  attachment  is  in  no  sense  lost 
by  the  officer's  possession  ceasing  to  be  personal.  But 
if  the  servant  placed  in  charge  of  the  property  abandon 
it,  and  it  come  into  the  possession  of  an  adverse  claim- 
ant,'^ or  be  attached  by  another  officer,"^  the  lien  of  the 
first  attachment  will  be  lost. 

393.  In  such  cases  what  act,  what  species  of  posses- 
sion, and  what  degree  of  vigilance,  will  constitute  legal 
custody,  is  often   a   question   of  difficulty,  depending 


^  Bagley  f.  W^hlte,  4   Pick.  395;  Sanderson   r.  Edwards,   16   Ibid.  144; 
Gower  V.  Stevens,  19  Maine,  92  ;  Young  v.  "Walker,  12  iS^ew  Ilamp.  502. 

*  Young  v.  Walker,  1 2  New  Hamp.  502. 

*  Carrington  i'.  Smith,  8  Pick.  419. 

*  Sanderson  r.  Edwards,  16  Pick.  144. 

[295] 


§  394  DISSOLUTION    OF   ATTACHMENT.  [CH.  XVI. 

upon  a  variety  of.  circumstances,  having  respect  to  the 
nature  and  situation  of  the  property,  and  the  purposes 
for  which  custody  and  vigilance  are  required  ;  such  as 
protection  from  depredation  by  thieves,  preservation 
from  the  weather,  and  other  causes  of  damage,  and 
especially  giving  notice  to  other  officers,  and  to  all  per- 
sons having  conflicting  claims.^ 

§  394.  Where  wood  and  lumber  lying  on  a  wharf 
were  attached,  and  placed  by  the  officer  in  charge  of  a 
keeper,  and  on  a  Sunday  morning  the  keeper  went 
away  from  the  wharf,  and  returned  in  the  afternoon, 
having  in  the  mean  time  secured  the  property  in  the 
manner  usual  on  Sundays,  by  locking  the  gates  of  the 
wharf  and  taking  the  key  with  him,  it  was  held  that 
there  was  no  neglect  on  the  part  of  the  keeper,  that  his 
custody  was  still  legal,  and  that  the  attachment  was  not 
abandoned.^  So,  where  an  attachment  was  levied  on  a' 
parcel  of  hewn  stones  lying  scattered  about  on  the 
ground,  which  were  placed  by  the  officer  in  charge  of 
the  plaintiff,  whose  place  of  business  was  about  fifty  or 
sixty  rods  from  the  place  where  the  stones  lay,  and  in 
sight  of  them,  and  whose  boarding-house  was  also  in 
sight  of  them ;  it  was  held,  that,  though  no  removal  of 
the  stones  took  place,  yet  that  the  officer  remained  in 
the  constructive  possession  of  them.  The  court  there 
say,  — "  it  is  not  necessary  to  continue  an  attachment, 
that  an  officer  or  his  agent  should  remain  constantly  in 
the  actual  possession.  The  nature  of  the  possession 
and  custody  which  an  officer  is  to  keep,  will  depend 


^  Sanderson  v.  Edwards,  IC  Pick.  144. 
«  Fettyplace  v.  Dutch,  13  Pick.  388. 

[296] 


CH.  xyl]  dissolution  of  attachment.  §  395 

upon  the  nature  and  position  of  the  property,  as  ships, 
rafts,  piles  of  lumber,  masses  of  stone,  or  lighter,  or 
more  portable,  or  more  valuable  goods.  In  general  it 
may  be  said  that  it  shall  be  such  a  custody  as  to  enable 
an  officer  to  retain  and  assert  his  power  and  control 
over  the  property,  so  that  it  cannot  probably  be  with- 
drawn, or  taken  by  another  without  his  knowing  it. 
Here,  it  is  manifest  the  officer  did  not  intend  to  aban- 
don the  attachment,  and  that  the  measures  he  took, 
considering  the  bulky  nature  of  the  property,  and  the 
situation  in  which  it  was  placed,  were  sufficient  to  con- 
tinue his  possession  and  preserve  his  attachment."^ 

§  395.  In  this  connection  may  properly  be  consid- 
ered, the  effect  of  the  death  of  the  defendant  upon  an 
attachment.  The  decisions  on  this  subject  are  few,  and 
mostly  so  much  connected  with  local  statutes  as  to  have 
little  general  applicability.  Of  this  description  are  the 
reported  cases  in  Maine  and  Massachusetts.  In  a  case 
in  the  latter  State,  where  the  effect  of  the  defendant's 
bankruptcy  after  the  levy  of  an  attachment  was  under 
consideration,  Shaw,  C.  J.,  in  delivering  the  opinion  of 
the  court,  used  the  following  language :  "  As  a  ques- 
tion of  policy  and  expediency,  we  are  inclined  to  the 
opinion  that  when  it  becomes  necessary  to  settle  and 
close  up  the  affairs  of  a  debtor,  whether  at  his  decease 
or  during  his  life,  true  equity  would  require  that  all  his 
property,  which  has  not  become  appropriated  and  vested 


1  Ilemmenway  v.  Wheeler,  14  Pick.  408.  See  further  on  subjects  of  this 
description,  Chap.  X.,  On  Attachment  of  Personal  Property  ;  Chap.  XII., 
On  Custody  of  Attached  Property ;  and  Chap.  XIV.,  On  Bailment  of  At- 
tached Property. 

,       [297] 


§  396  DISSOLUTION    OF   ATTACHMENT.  [CH.  XVI. 

by  his  own  act  or  the  operation  of  law,  should  be  ap- 
plied to  the  payment  of  all  his  debts,  and  that  an  at- 
tachment on  mesne  process,  being  a  sequestration  of  his 
property,  and  placing  it  provisionally  in  the  custody  of 
the  law,  should  give  way  to  the  more  general  seques- 
tration of  all  his  property  for  the  satisfaction  of  all  his 
debts.  In  that  case  the  creditor  will  receive  the  whole 
amount  of  his  debt,  if  there  be  assets,  and  his  satisfac- 
tion pro  rata,  if  there  be  a  deficit ;  and  as  between  him 
and  other  creditors  there  seems  no  equitable  ground  on 
which  he  should  have  more.  Such  is  the  law  in  Massa- 
chusetts in  regard  to  the  settlement  of  the  estate  of  a 
deceased  insolvent  debtor,  where  the  settlement  and 
distribution  of  the  estate  must  necessarily  be  final. 
Upon  the  appointment  of  an  administrator,  who  takes 
the  property  as  trustee  for  all  the  creditors,  all  attach- 
ments on  mesne  process  are  dissolved."  ^ 

§  396.  In  Pennsylvania,  where  a  foreign  attachment, 
as  under  the  custom  of  London,  is  a  process  to  compel 
the  appearance  of  the  non-resident  debtor,  by  distress 
and  sale  of  the  property  attached,  it  is  held  that  the 
death  of  the  defendant  before  final  judgment  dissolves 
the  attachment,  if  he  shall  not  have  entered  special 
bail.  But  his  death  after  final  judgment  does  not  have 
that  effect.  In  the  case  in  which  these  points  were  de- 
cided, the  court  say,  —  "If  these  proceedings  w^ere  in 
all  respects  m  rem,  they  would  not  abate  by  the  death 
of  the  defendant.  For  some  purposes  they  are  to  be  so 
considered ;  for  execution  can  only  be" against  the  goods 


1  Davenport  v.  Tilton,  10  Metcalf,  320. 
[298] 


CH.  XVI.]  DISSOLUTION    OF   ATTACHMENT.  §  309 

attached,  and  not  against  the  person  of  the  defendant ; 
but  to  every  purpose  they  are  not ;  for  by  entering 
special  bail,  the  attachment  is  dissolved,  and  it  then 
becomes  a  mere  personal  action."^ 

§  397.  In  a  subsequent  case  the  same  court  held 
that,  the  primary  intent  of  an  attachment  being  to  pro- 
cure an  appearance,  the  attachment  was  dissolved  the 
instant  the  defendant  had  appeared  or  lost  his  capacity 
to  appear;  and- hence  that  where  an  attachment  was 
taken  out  against  a  foreign  corporation,  and  after  its 
execution  and  before  final  judgment  the  corporation 
became  civilUer  moriuus,  under  a  decree  of  forfeiture  of 
its  charter  by  a  judicial  tribunal,  the  attachment  was 
dissolved.^ 

§  398.  In  South  Carolina,  it  was  held  that  a  foreign 
attachment  abates  by  the  death  of  the  defendant  pend- 
ing the  suit ;  but  when  the  garnishee  has  made  default, 
judgment  may  be  had  against  him  after  the  defendant's 
death.^ 

§  399.  In  this  connection,  too,  may  properly  be  con- 
sidered the  effect  upon  an  attachment  of  an  act  of 
bankruptcy  committed  by  the  defendant  after  the  levy 
of  the  writ.  Does  that  act  dissolve  an  attachment  pre- 
viously made  ?  This  question  has  excited  elaborate 
discussion  by  some  of  the  first  jurists  of  the  country. 


^  Fitch  V.  Ross,  4  Serg.  &  Rawle,  55  7. 

2  Farmers  &  Mechanics  Bank  v.  Little,  8  Watts  &  Serg.  207. 

^  Crocker  r.  KadcUffe,  1  Constitutional  Rep.  ( Tread wav)  83. 

[299] 


§  400  DISSOLUTION    OF   ATTACHMENT.  [CH.  XVI. 

It  will  at  once  be  seen  to  turn  altogether  on  the  point 
whether  an  attachment  is  a  lien,  in  such  sense  as  to  be 
within  that  clause  of  the  Bankrupt  Law  which  protects 
existing  liens  against  the  operation  of  the  law.  If  a 
lien,  the  attachment  cannot  be  dissolved  by  an  act  of 
bankruptcy  on  the  part  of  the  defendant. 

§  400.  The  late  eminent  Justice  Stoky,  on  more  than 
one  occasion,  during  the  existence  of  the  General  Bank- 
ruj^t  Act  of  1841,  decided  that  an  attachment  was  not 
a  lien,  either  in  the  sense  of  the  common  law,  or  of  the 
maritime  law,  or  of  equity ;  but  only  a  contingent  and 
conditional  charge,  until  the  judgment  and  levy;  and 
therefore  was  dissolved  by  the  defendant's  bankruptcy.^ 
In  this  judgment,  that  learned  jurist  stood  opposed  by 
every  other  tribunal  in  the  United  States  before  which 
the  question  was  made,  except  the  Supreme  Court  of 
Louisiana.^  The  great  weight  attached  to  his  views  on 
any  question,  led,  after  the  promulgation  of  those  de- 
cisions, to  several  very  able  opinions  in  favor  of  the  op- 
posite conclusion.  Indeed  in  every  instance  where  the 
subject  was  passed  upon,  with  the  single  exception  just 
named,  the  lien  of  the  attachment  was  sustained.  The 
District  Court  of  the  United  States  for  Vermont,^  the 
late  Justice  Thompson,  of  the  Supreme  Court  of  the 
United  States,^  and  the  Supreme  Courts  of  New  Hamp- 


1  Fqstcr's  Case,  2  Story,  131  ;  Bellows  &  Peck's  Case,  3  Story,  428. 

2  Fisher  v.  Vose,  3  Robinson  (La.)  457. 

^  Downer  v.  Brackett,  5  Law  Reporter,  392;    s.  c.  21  Vermont,  599; 
Rowell's  Case,  6  Law  Reporter,  300  ;  s.  c.  21  Vermont,  620. 
*  Ilau^liton  V.  Eustis,  5  Law  Reporter,  505. 

^[300] 


CH.  XYL]  dissolution    of    ATTACnMENT.  §  400 

sliire,^  Massachusetts,^  New  Jersey,^  and  Mississippi/  all 
concurred  in  that  result ;  as  did  also  the  Supreme 
Court  of  Connecticut  in  a  case  which  arose  under  the 
Bankrupt  Act  of  1800.^  We  are,  therefore,  justified  in 
considering  it  settled  by  the  weight  of  authority,  that 
an  attachment  is  not  dissolved  by  the  bankruptcy  of 
the  defendant. 


^  Klttredge  v.  Warren,  14  New  Hamp.  509. 
2  Davenport  v.  Tilton,  10  Metcalf,  320. 
'  Vreeland  v.  Brown,  1  Zabriskie,  214. 

*  AVells  V.  Brander,  10  Smedes  &  Marsliall,  348. 

*  Ingraham  v.  Phillips,  1  Day,  117. 

26  [301] 


CHAPTER    XVII. 

OF  NOTICE   TO   ABSENT  DEFENDANTS   BY  PUBLICATION. 

§  401.  Provision  is  usually  made  in  attacliment  laws 
for  notice  by  publication  to  absent  defendants,  of  the 
institution  and  pendency  of  attachment  suits  against 
them,  in  order  that  they  may,  if  they  see  proper,  ap- 
pear and  defend.  This  is  one  of  the  guards  provided 
for  the  protection  of  defendants,  and  the  requirements 
of  every  statute  in  this  respect  should  be  strictly  en- 
forced. 

§  402.  The  subject  presents  itself  in  a  twofold  as- 
pect: 1.  As  to  the  sufficiency  of  the  notice,  as  the 
foundation  for  farther  proceedings  in  the  cause  ;  and  2. 
As  to  the  effect  of  failing  to  publish  notice,  or  of  pub- 
lishing an  insufficient  one,  upon  the  validity  of  the  sub- 
sequent proceedings  in  the  suit,  when  afterwards  called 
in  question  inter  alios. 

%  403.  Under  the  first  head,  the  sufficiency  of  the 
notipe  to  authorize  judgment  against  the  defendant, 
depends  upon  its  conformity  to  the  statute  in  its  terms 
and  its  publication.  As  to  the  terms,  there  should  be 
a  substantial,  if  not  a  strict,  compliance  with  the  law. 
Therefore,  where  the  advertisement  was  required  to 
[302] 


CH.  XVLl.']    NOTICE   TO    DEFENDANTS    BY    PUBLICATION.  40 G  § 

"  state  the  names  of  the  parties,  the  day,  month,  and 
year,  when,  and  from  what  court,  and  for  what  sum, 
the  writ  issued,"  and  it  omitted  to  state  the  day,  month, 
and  year  when  the  writ  issued,  it  was  held  to  be  insuf- 
ficient.^ 

§  404.  In  Missouri,  where  the  statute  required  "the 
court  to  order  a  pubHcation  to  be  made,  stating  the 
nature  and  amount  of  the  pLaintiff's  demand,"  &c.,  it 
was  held  that  stating  in  the  notice  "  that  an  action  of 
assumpsit  for  the  sum  of  §403.70  had  been  commenced 
against  him,"  was  a  sufficient  statement  of  the  nature 
of  the  plaintiff's  demand.^ 

§  405.  Under  the  second  head,  it  was  held  that  where 
publication  was  required  to  be  made  for  two  months,  it 
was  not  sufiicient  to  publish  it  for  eight  weeks.^ 

§  406.  Where  the  law  declared  that  no  judgment 
should  be  entered  on  the  attachment  nntil  the  expira- 
tion of  twelve  months ;  during  which  time  the  plaintiff 
should  cause  notice  of  the  attachment  to  be  advertised 
three  weeks  successively  in  a  public  newspaper  ;  it  was 
held  that  publication  at  any  time  within  the  twelve 

^  Ford  r.  Wilson,  Tappan,  235.  As  this  work  is  scarce,  and  I  have  never 
seen  it  included  in  any  catalogue  of  law  books  in  the  United  States,  except 
that  of  the  St.  Louis  Law  Library,  it  may  not  be  improper  to  mention  that 
it  comprises  "  Cases  decided  in  the  Courts  of  Common  Pleas  in  the  Fifth 
Circuit  of  the  State  of  Ohio,"  from  1816  to  1819,  by  Benjamin  Tappan, 
President  Judge  of  those  courts ;  and  was  published  at  Steubenville,  Ohio, 
in  the  year  1831. 

*  Sloan  V.  Forse,  11  Missouri,  12G. 

'  Pyle  V.  Cravens,  4  Littell,  17  ;  LawHn  v.  Clay,  Ibid.  283. 

[303] 


§  408  NOTICE    TO    DEFENDANTS    BY   PUBLICATION.    [CH.  XVII. 

months  was  sufficient.^  And  where  the  stcatnte  does 
not  fix  any  time  within  which  the  pnbhcation  shall  be 
commenced,  it  was  held  that  a  delay  of  publication  for 
two  years  and  a  half  was  not  a  sufficient  ground  for  set- 
ting aside  the  attachment  proceedings.^ 

§  407.  A  common  occurrence  is  for  legislatures  to 
change  the  times  of  holding  courts.  Where  by  any 
such  law  the  term  of  a  court  is  fixed  for  a  time  anterior 
to  that  at  which  it  was  formerly  established,  and  the 
full  time  required  by  law  for  publication  of  notice  is 
thereby  abridged,  no  proceedings  in  the  attachment 
suit,  depending  for  their  validity  upon  the  correct  pub- 
lication of  the  notice,  can  properly  be  taken.  There- 
fore, where  the  law  required  publication  for  six  months, 
and  after  publication  was  ordered,  the  legislature  passed 
a  law  requiring  the  court  to  be  held  at  an  earlier  day 
than  before,  which  allowed  only  four  months  for  publi- 
cation, and  judgment  was  taken  at  the  end  of  four 
months,  it  was  considered  erroneous  and  was  reversed.^ 

§  408.  But  a  much  more  serious  question  than  any 
that  have  been  mentioned,  arises  in  cases  where  title  is 
claimed  under  judgments  in  attachment  cases,  where 
there  has  been  insufficient  publication,  or  none  at  alh 
Upon  this  point,  it  was  decided  in  Indiana,  in  an  action 
of  ejectment  for  the  recovery  of  land,  purchased  at 
sheriff's  sale  in  an  attachment  suit,  that  insufficiency  of 


1  Harlow  v.  Becktle,  1  Blackford,  237. 
-  Matter  of  Clark,  3  Denio,  167. 

3  SafTaraciis  v.  Bennett,  6  Howard  (:Mi.)  277.     See  Colwell  v.  Bank  of 
Steubenville,  2  Ohio,  229.     2d  Edition,  377. 

[304] 


CH.  XVII.]    NOTICE    TO    DEFENDANTS    BY   PUBLICATION.         §  409 

publication  did  not  invalidate  the  proceedings,  so  as  to 
allow  them  to  be  impeached  collaterally.^ 

§  409.  In  Ohio,  in  a  similar  case,  it  was  at  one  time 
held  that  the  fact  of  the  notice  required  by  statute  not 
having  been  given,  made  the  judgment  and  sale  under 
it  void,  and  that  the  purchaser  at  the  sale  acquired  no 
title ;  2  but  the  Supreme  Court  of  that  State  afterwards 
reversed  itself  on  this  point,  in  a  case  which  will  justify 
a  somewhat  extended  presentation  here.  The  action 
was  ejectment,  and  the  defendant  claimed  title  under  a 
sheriff's  deed,  made  in  pursuance  of  a  sale  under  execu- 
tion, in  an  attachment  suit,  where  the  notice  required 
by  statute  was  not  given.  This  title  was  impeached  on 
the  ground  of  the  nulUty  of  the  proceedings  in  the  at- 
tachment suit.  We  present  the  opinion  of  the  court  on 
this  point. 

"  Are  the  proceedings  in  attachment  void  ?  It  is  con- 
tended they  are  void,  because  no  notice  of  the  pendency 
of  the  attachment  w\as  given,  as  required  by  the  stat- 
ute. If  the  jurisdiction  of  the  court  once  attached,  sub- 
sequent irregularities  would  render  the  judgment  void- 
able only;  and  it  would  remain  vahd  until  reversed, 
and  cannot  be  impeached  collaterally. 

"What,  then,  gives  the  court  jurisdiction  in  a  pro- 
ceeding in  attachment?  The  filing  of  the  proper  'affi- 
davit, issuing  the  writ,  and  attaching  the  property. 
The  moment  the  writ  goes  into  the  hands  of  the  officer, 
he  is  authorized  and  required  to  seize  the  property. 
When  this  is  done,  the  property  is  taken  out  of  the  pos- 


^  Ziegenhagen  v.  Doe,  Smith,  174. 
^  Warner  v.  Webster,  13  Ohio,  505. 

26-  [305] 


§  409  NOTICE    TO    DEFENDANTS    BY    PUBLICATION.    [CH.  XVII. 

session  of  the  debtor  into  the  custody  of  the  law.  The 
court  have  authority,  at  any  time  after  the  return  of 
the  writ,  to  direct  property  of  a  perishable  nature  to  be 
sold.  It  is  not  until  after  the  return  of  the  writ  that 
the  clerk  is  directed  to  make  out  the  advertisement, 
which  the  plaintiff  is  required  to  have  published  as  the 
statute  directs.  If  he  neglects  to  have  such  notice  pub- 
lished, for  six  weeks  successively,  the  statute  directs 
that  the  attachment  shall  be  dismissed  with  costs. 
Here,  then,  for  a  period  of  six  weeks,  at  least,  if  the 
publication  of  the  notice  only  gives  jurisdiction,  the 
court  both  have  and  have  not  jurisdiction  over  the  prop- 
erty seized  in  attachment.  It  is  contended  the  court 
has  no  jurisdiction,  and  yet  the  statute  authorizes  the 
court  to  exercise  a  judicial  act  over  property  attached, 
namely,  to  determine  whether  it  is  perishable,  and  if  so, 
to  direct  its  sale.  Will  it  be  contended,  then,  that  the 
court  has  jurisdiction  over  perishable  property  before 
notice  consummated,  but  not  over  property  not  per- 
ishable ?  This  is  a  distinction  not  authorized  by  the 
statute. 

"A  court  acquires  jurisdiction  by  its  own  process.  If 
the  process  of  the  court  be  executed  upon  the  person  or 
thing  concerning  which  the  court  are  to  pronounce 
judgment,  jurisdiction  is  acquired.  The  writ  draws  the 
person  or  thing  within  the  joower  of  the  court;  the 
court  once  having  by  its  process  acquired  the  power  to 
adjudicate  upon  a  person  or  thing,  it  has  what  is  called 
jurisdiction.  This  power  or  jurisdiction  is  acquired  only 
by  its  process.  To  give  jurisdiction  is  the  object  of 
process.  The  mode  of  executing  or  serving  process,  is 
sometimes  directed  or  permitted  to  be  by  notice  of  pub- 
lication. All  process  issues  under  the  seal  of  the  court. 
[306]  •         ^ 


CH.  XVII.]    NOTICE    TO    DEFENDANTS    BY   PUBLICATION.         §  409 

Notice  by  publication  is  not  process,  but,  in  certain  cases 
in  contemplation  of  law,  is  equivalent  to  service  of  pro- 
cess. The  process  in  attachment  is  the  writ  authorizing 
and  directing  a  seizure  of  the  property.  No  process  is 
issued  against  the  person,  because  the  proceeding  is  in 
rem.  The  statute,  however,  regards  it  but  just  that  no- 
tice should  be  given  to  the  debtor,  not  for  the  purpose 
of  giving  the  court  jurisdiction  over  the  subject-matter, 
but  to  permit  the  debtor  to  have  an  opportunity  to 
protect  his  rights,  and  directs  that  the  writ  shall  be 
quashed  if  it  be  not  given.  The  distinction  is  between 
a  lack  of  power  or  want  of  jurisdiction  in  the  court,  and 
a  wrongful  or  defective  execution  of  the  power.  In 
the  first  instance,  all  acts  of  the  court  not  having  juris- 
diction or  power,  are  void  —  in  the  latter,  voidable  only. 
A  court,  then,  may  act,  first,  without  power  or  jurisdic- 
tion ;  second,  having  power  or  jurisdiction,  may  exercise 
it  wrongfully ;  or,  third,  irregularly.  In  the  first  in- 
stance, the  act  or  judgment  of  the  court  is  wholly  void, 
and  is  as  though  it  had  not  been  done.  The  second  is 
wrong,  and  must  be  reversed  on  error.  The  third  is 
irregular,  and  must  be  corrected  by  motion.  The  latter 
is  where  the  power  is  rightfully  exercised,  but  in  an 
irregular  way.  Hence  there  is  a  vast  distinction  be- 
tween a  defect  of  power,  a  wrongful  exercise  of  power, 
and  an  irregular  exercise  of  power. 

"Now,  what  has  happened  in  this  instance?  The 
court  had  the  power,  by  the  service  of  its  process,  to 
proceed  and  give  judgment;  but  a  circumstance  oc- 
curred after  having  acquired  such  power,  which  forbade 
them  the  exercise  of  it ;  but  having  it,  they  did  exercise 
it,  which  was  error.  But  it  can  only  be  corrected  by  a 
writ  of  error. 

[307] 


§  409         NOTICE   TO   DEFENDANTS   BY   PUBLICATION.    [CH.  XVII. 

"  We  rest  the  case,  nakedly,  upon  the  ground,  so  far 
as  the  proceedmgs  in  attachment  are  concerned,  that 
there  was  a  judgment  of  a  court  of  competent  jurisdic- 
tion, unreversed,  conferring  the  power  to  sell  the  land 
in  question,  which  cannot  be  impeached  in  this  collat- 
eral way ;  that  the  defects  and  irregularities  complained 
of,  should  have  been  remedied  by  writ  of  error,  or 
motion."  ^ 

^  Paine's  Lessee  v.  Mooreland,  15  Ohio,  435. 

[308] 


CHAPTER  XVIII. 

OF    GARNISHMENT. GENERAL   VIEWS. DI^^SION   OP   THE 

SUBJECT. 

§  410.  We  come  now  to  that  operation  of  an  attach- 
ment, whereby  property  that  cannot  be  seized  may  be 
reached  by  the  process,  and  debts  due  to  the  defendant 
may  be  subjected  to  the  payment  of  his  debts.  This  is 
the  peciiHar  feature  of  attachment  by  the  custom  of 
London,  by  which  one  may  attach  money  or  goods  of 
the  defendant  either  in  the  plaintiff's  own  hands,  or  in 
the  custody  of  a  third  person.^  From  this  custom,  as 
before  remarked,  has  sprung  the  system  of  attachment 
laws  of  the  United  States. 

§  411.  The  pecuhar  operation  of  the  process,  by 
wdiich  effects  of  the  defendant  which  cannot  be  seized 
and  taken  into  custody,  may  still  be  rendered  liable  to 
the  payment  of  his  debts,  has  received  the  designation 
of  garnishment,  or  warning,  and  the  person  in  whose 
hands  such  effects  are  attached  is  styled  a  garnishee,  be- 
cause of  his  being  warned  not  to  pay  the  money  or 
deliver  the  property  of  the  defendant  in  his  hands  to 
him,  but  to  appear  and  answer  the  plaintiff's  suit.^ 
This  designation  exists  in  all  the  States  of  the  Union, 


1  Priv.  Londini,  253. 

-  Priv.  Londini,  256  ;  Comvn's  Digest,  Attachment,  E. 

[3091 


§413  GARNISHMENT GENERAL    VIEWS.  [CH.  XVIII. 

except  Maine,  New  Hampshire,  Vermont,  Massachusetts, 
and  Rhode  Island,  where  the  party  so  warned  is  called 
a  trustee,  and  the  process  under  which  he  is  warned  is 
called  trustee  process.  The  terms  garnishment  and  gar- 
nishee being,  however,  so  nearly  of  universal  use,  will  be 
retained  throughout  this  work,  though  perhaps  the 
larger  part  of  the  cases  cited  have  been  decided  in  the 
States  where  the  other  terms  are  exclusively  used. 

§  412.  The  first  inquiry  naturally  presenting  itself, 
is  for  general  principles  regulating  the  liability  of  gar- 
nishees. This  liability  may  result,  as  w^e  shall  hereafter 
fully  see,  either  from  the  possession  by  the  garnishee, 
when  summoned,  of  personal  property  belonging  to  the 
defendant,  or  from  his  being,  at  that  time,  indebted  to 
the  defendant.  It  will,  therefore,  at  once  be  apparent 
that  many  questions  must  arise  as  to  the  nature  and 
condition  of  the  property  in  the  garnishee's  hands,  and 
the  nature,  extent,  and  qualifying  circumstances  of  his 
liability  as  a  debtor  of  the  defendant,  which  must  neces- 
sarily elicit  much  discussion  and  involve  the  determina- 
tion of  many  legal  principles.  These  questions  will  be 
considered  in  their  appropriate  order:  at  present  it  is 
important  to  lay  the  groundwork  of  general  principles. 

§  413.  It  is  necessary,  in  the  first  place,  to  bear  in 
mind,  that,  wherever  the  distinction  exists  between 
common  law  and  chancery  jurisdiction,  courts  of  law 
cannot  undertake,  by  garnishment,  to  settle  equities 
between  the  parties,  to  subject  an  equitable  demand 
which  the  defendant  may  have  against  the  garnishee  to 
the  payment  of  the  defendant's  debt.  Where  this  dis- 
tinction does  not  exist,  and  both  branches  of  jurisdiction 
[310] 


CH.  XYIII.]  GARNISHMENT GENERAL   VIEWS.  §415 

are,  as  it  were,  fused  into  one,  or  where,  as  in  some 
states,  courts  of  chancery  are  vested  with  jurisdiction 
in  attachment  cases,  the  rule  may  be  different.  In 
courts  of  law,  however,  garnishment  must  be  considered 
as  a  legal  and  not  an  equitable  proceeding,  and  conse- 
quently the  defendant's  rights  to  the  fund  or  property 
sought  to  be  condemned,  must  be  legal,  as  contradistin- 
guished from  equitable.  If  this  rule  be  departed  from, 
there  will  be  no  stopping  point,  and  we  must  go  the 
full  length,  and  claim  that  the  equitable  rights  of  the 
defendant  may  be  attached  by  garnishment  in  a  suit  at 
law,  and  thus  a  court  of  law  will  become  invested  with 
cognizance  of  equitable  rights,  and  therefore  bound  to 
ascertain  and  condemn  them,  however  difficult  the  task 
may  be,  or  however  incompetent  the  powers  of  the 
court  for  this  purpose.-^ 

§  414.  As  the  plaintiff  in  the  attachment  seeks  to 
avail  himself  of  the  rights  of  the  defendant  against  the 
garnishee,  his  recourse  against  the  latter  must  of  neces- 
sity be  limited  by  the  extent  of  the  garnishee's  liability 
to  the  defendant.  This  principle  is  subject,  however,' 
to  an  exception,  where  the  garnishee  is  in  possession  of 
effects  of  the  defendant  under  a  fraudulent  transfer  from 
the  latter.  There,  though  the  defendant  would  have 
no  claim  against  the  garnishee,  yet  a  creditor  of  the  de- 
fendant may  subject  the  effects  in  the  garnishee's  hands 
to  his  attachment. 

§  415.   It  is  an  invariable  rule  that,  under  no  circum- 
stances, shall  a  garnishee,  by  the  operation  of  the  pro- 

^  Harrell  v.  AVbitman,  19  Alabama,  135. 

[311] 


§  416  GARNISHMENT GENERAL   VIEWS.  [CH.  XVIII. 

ceeclings  against  him,  be  placed  in  any  worse  condition 
than  he  would  be  if  the  defendant's  claim  against  him 
were  enforced  by  the  defendant  himself  This  is  neces- 
sary, in  order  to  protect  the  garnishee's  rights,  as  be- 
tween him  and  the  defendant,  and  to  enable  the  gar- 
nishee to  defend  against  a  suit  which  the  defendant 
might  bring  against  him  on  the  same  liability  for  which 
he  may  have  been  held  as  garnishee.  The  practical 
operation  of  these  principles  will  be  frequently  exhib- 
ited in  future  chapters. 

§  416.  As  to  the  general  basis  of  a  garnishee's  lia- 
bility, there  seems  to  be  consentaneousness  of  opinion. 
In  Massachusetts  and  in  Maine,  where  one  having 
"goods,  effects,  or  credits"  of  the  defendant  "intrusted 
or  deposited  "  in  his  hands,  may  be  held  as  garnishee,  it 
is  considered  that,  in  order  to  charge  a  garnishee,  the 
defendant  must,  either  have  a  cause  of  action  against 
him,  or  the  garnishee  must  have  in  his  possession  per- 
sonal property  belonging  to  the  defendant  capable  of 
being  seized  and  sold  on  execution.^  In  New  Hamp- 
shire and  in  Vermont,  where  "  any  person  having  in 
his  possession  money,  goods,  chattels,  rights,  or  credits  " 
of  the  defendant,  may  be  charged  as  garnishee,  the 
same  rule  prevails.^  In  Alabama,  where  "  any  person 
supposed  to  be  indebted  to  the  defendant"  may  be 
summoned  as  garnishee,  it  is  held  that  to  entitle  the 


1  M;,une  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438;  White  v.  Jenkins,  16 
Ibid.  G2;  Bri^den  v.  Gill,  Ibid.  522  ;  llundlet  v.  Jordan,  3  Maine,  47. 

"  Haven  i'.  Wentworth,  2  New  Ilamp.  93;  Adams  v.  Barrett,  Ibid.  374; 
Piper  I'.  Piper,  Ibid.  439  ;  Greenloafy.  Perrin,  8  Ibid.  273  ;  Paul  v.  Paul,  10 
Ibid.  117;  Hutchins  v.  Ilawley,  9  Vermont,  295;  Iloyt  v.  Swift,  13  Ibid. 
129. 

[  312  ] 


CH.  XYin.]  GARNISmiENT GENERAL    TIEWS.  §417 

plaintiff  to  recover  against  a  garnishee,  it  must  be  sliown 
that  the  defendant  could  have  maintained  debt  or  in- 
dchitatus  assumpsit  for  the  recovery  of  the  demand  sought 
to  be  subjected.^ 

§  417.  This  rule  is  qualified,  in  the  case  iDcfore  re- 
ferred to,  of  the  garnishee's  possession  of  the  effects  of 
the  defendant  under  a  fraudulent  transfer,  and  is  also 
subject  to  exceptions.  For  instance,  where  the  gar- 
nishee has  in  his  possession  property  which,  when  he  is 
summoned,  could  not  be  seized  under  attachment  or  ex- 
ecution, because  not  removable  without  material  injury 
to  it,  (as  hides  in  the  process  of  tanning,)  he  may  nev- 
ertheless be  charged  as  garnishee  in  respect  of  such 
23roperty,  because  he  can  hold  it  until  it  be  in  a  condi- 
tion to  be  delivered  on  execution.^  So,  an  attorney  at 
law,  who  has  collected  money  for  his  client,  may  be 
held  as  garnishee  of  the  client,  though  the  latter  have 
made  no  demand  of  pa3^ment,  without  which  he  could 
maintain  no  action  against  the  attorney.^  So  a  person 
indebted  to  two  jointly,  either  on  implied  assumpsit^  or 
by  note,^  may  be  charged  as  garnishee  of  one  of  his 
creditors,  though  that  one  could  not  maintain  an  action 
against  him  without  joining  his  co-creditor.  So  where 
the  garnishee  was,  when  summoned,  a  debtor  of  the  de- 
fendant, but  the  debt  was  payable  at  a  future  time: 

1  Walke  r.  McGeliee,  11  Alabama,  273;  Harrell  v.  Whitman,  19  Ibid.  135  ;: 
Cook  V.  AValthall,  20  Ibid.  334. 

-  Clark  *•.  Brown,  14  Mass.  271. 

^  Stajiles  I'.  Staples,  4  Maine,  532;  Woodbridge  r.  Morse,  5  New  Ilamp. 
519 ;  Thayer  v.  Sherman,  12  Mass.  441 ;  Riley  v.  Hirst,  2  Penn.  State,  34G  ;. 
Mann  v.  Buford,  3  Alabama,  312. 

*  Whitney  v.  Munroe,  19  Maine,  42.  •  ' 

^  Miller  r.  Richardson,  1  Missouri,  310. 

27  [ai3] 


§419  GARNISHMENT GENERAL    VIEWS.  [CH.  XVIII. 

thongli  the  defendant,  at  the  time  of  the  garnishment, 
could  have  maintained  no  action  against  the  garnishee, 
yet  the  latter  may  he  charged. 

§  418.  Still  the  rule  as  stated  may  be  considered  gen- 
erally applicable,  and  it  follows  thence  that  one  cannot 
be  made  liable  as  garnishee  in  respect  of  real  estate  of 
the  defendant  in  his  j)OSsession,  and  it  has  been  so  held 
in  several  instances.  In  Massachusetts  ^  and  Connecti- 
cut,^ where  the  possession  of"  goods,  effects,  and  credits" 
of  the  defendant  by  the  garnishee,  is  the  criterion  of 
the  garnishee's  liability,  real  estate  is  not  considered  to 
come  within  the  meaning  of  those  terms.  In  New 
Hampshire  ^  and  Vermont,*  under  statutes  basing  the 
liability  of  the  garnishee  on  his  possession  of  "  money, 
goods,  chattels,  rights,  or  credits,"  the  same  doctrine  is 
held. 

§  419.  Therefore,  where  A.,  when  about  to  abscond, 
fraudulently  executed  a  note  to  B.,  and  a  mortgage  to 
secure  the  payment  of  the  note,  and  B.  was  subse- 
quently garnished,^  the  court  said,  —  "the  lands  mort- 
gaged are  not  effects  within  the  statute,  because  the 

*  IIow  V.  Field,  5  Mass.  390;  Dickinson  v.  Strong,  4  Pick.  57;  Ripley  %>. 
Severance,  6  Pick.  474  ;  Gore  v.  Clisby,  8  Pick.  555;  Bissell  v.  Strong,  9 
Pick.  562. 

2  llisley  V.  Welles,  5  Conn.  431. 

'  Wright  V.  Boswortb,  7  New  Ilamp.  500. 

*  Baxter  v.  Currier,  13  Vermont,  G15. 

*  This  being  the  first  instance  of  the  use  of  this  word  in  this  book,  I  deem 
it  proper  to  reniark  that  I  have  studiously  avoided  the  very  prevalent — in- 
deed, almost  universal  —  corruption  of  it  into  "  garnisheed,"  which  disfigures 
the  Reports  of  this  country.  I  have,  with  equal  care,  shunned  the  displace- 
ment of  the  words  "garnish"  and  "  garnishing"  by  "garnishee,"  (used  as  a 
Ycrb,).  and  garnisheeing." 

[314] 


CH.  XYIIL]  garnishment GENERAL    VIEWS.  §  420 

mortgao-e  beiiii?  fraudulent  as  to  creditors,  the  lands 
mortgaged  may  be  taken  in  execution,  either  by  the 
plaintifi'  or  by  any  other  creditor.  And  it  has  long  been 
settled  that  where  lands  are  fraudulently  conveyed  by 
a  debtor,  the  grantee  is  not  thereby  a  trustee  for  cred- 
itors, because,  as  to  them,  the  conveyance  is  void,  and 
the  lands  are  liable  to  their  executions,  without  the  as- 
sent or  exposure  of  the  grantee.  If  he  was  holden  a 
trustee  to  the  value  of  the  lands,  after  having  paid  one 
creditor  that  value,  another  creditor  might  by  his  exe- 
cution take  the  lands  from  him,  and  thus  he  would  in 
effect  be  charged  with  the  value  without  any  consider- 
ation." 1 

§  420.  Soj  where  an  insolvent  debtor  had  assigned 
personal  and  real  property  for  the  payment  of  certain 
debts,  and  the  assignee  was  garnished,  he  was  held  not 
liable  in  respect  of  the  real  estate,  the  court  basing  its 
judgment  on  the  following  grounds.  "  There  are  great 
difficulties  in  charging  the  assignee  by  the  trustee  pro- 
cess, on  account  of  the  real  estate  so  conveyed.  Indeed, 
the  provisions  of  the  statute  cannot  be  executed  upon 
it,  according  to  the  intentions  of  the  legislature,  nor  can 
real  property  thus  situated  be  brought  within  any  tech- 
nical definition  of  the  words  of  the  statute  which  desio-- 
nate  the  objects  of  the  process.  Land  is  neither  goods, 
effects,  nor  credits ;  neither  is  the  assignee  indebted  to 
the  assignor  on  account  of  it.  If  this  difficulty  could 
be  overcome  by-  giving  a  broader  signification  to  the 
term  effects  than  is  usually  assigned  to  it,  there  are  other 
difficulties  which  are  quite  insuperable.     The  sixth  sec- 

^  How  V.  Field,  5  Mass.  390, 

[315] 


§421  GARNISHMENT GENERAL   VIEWS.  [CH.  XVIII. 

tion  of  the  statute,  provides  that  the  trustee,  when  judg- 
ment is  rendered  against  the  principal,  and  against  his 
goods  and  effects  in  the  hands  of  the  trustee,  may  dis- 
charge himself  by  exposing  the  goods  and  effects  of  the 
principal  to  the  officer  who  has  the  execution ;  and  the 
officer  may  then  seize  and  sell  them  as  the  property  of 
the  principal.  This  is  wholly  inapplicable  to  land; 
which  cannot  be  considered  as  the  principal's  while  the 
legal  title  is  in  the  assignee.  And  then  the  form  of  the 
execution  provided  in  the  statute  manifestly  shows  that 
real  estate  was  not  in  the  contemplation  of  the  legisla- 
ture, as  a  subject  of  the  process.  It  requires  the  sheriff, 
for  want  of  goods,  chattels,  or  lands  of  the  principal  in 
his  own  hands  and  possession,  or  oi  goods,  effects,  and  cred- 
its in  the  hands  of  the  trustees,  to  be  by  them  discov- 
ered and  exposed,  to  take  the  body  of  the  principal,  etc. 
Now  land  conveyed  to  the  assignee  by  a  honafide  deed, 
cannot  be  considered  as  in  the  hands  or  possession  of 
the  principal,  nor  can  it  be  considered  as  goods,  effects, 
or  credits  in  the  hands  of  the  trustee."  ^ 

§  421.  The  reasons  here  given,  though  referring 
principally  to  the  statute  of  Massachusetts,  yet  have  a 
general  applicabilit3J ;  as  in  most  if  not  all  the  States,  a 
garnishee  may  discharge  himself  from  liability  in  re- 
spect of  property  of  the  defendant  in  his  hands,  by  de- 
livering it  to  the  officer.  Wherever  this  is  the  case, -it 
would  seem  to  follow  that  a  garnishee  should  not  be 
charged  in  respect  of  property  which  he  cannot  so  de- 
liver, and,  therefore,  not  in  respect  of  real  estate.  But, 
aside  from  statutory  provisions,  it  is  sufficient  that,  if 

^  Gore  V.  Clisby,  8  Pick.  555. 

[31G] 


CH.  XVIII.]  GARNISHMENT GENERAL   VIEWS.  §  424 

the  conveyance  to  the  garnishee  be  hond  fide,  he  has  no 
property  of  the  defendant  in  his  possession,  and  if  it  be 
fraudulent,  the  property  is  subject  to  the  execution 
against  the  defendant,  without  any  disclosure  by  the 
garnishee ;  and  that  the  garnishee  if  made  liable  by 
one  creditor  for  the  value  of  the  land,  may  afterwards 
lose  the  land  by  a  sale  under  another  creditor's  exe- 
cution. 

§  422.  But  though  a  garnishee  may  not  be  charged 
in  respect  of  real  estate  of  the  defendant  in  his  posses- 
sion, we  shall  hereafter  see  that  he  may  be,  on  account 
of  liabilities  growing  out  of  the  possession  of  such  prop- 
erty. 

§  423.  The  further  consideration  of  this  subject  will 
naturally  lead  to  its  arrangement  in  two  general  divis- 
ions,— first,  the  liability  of  a  garnishee  in  respect  of 
property  of  the  defendant  in  his  possession ;  and,  second, 
his  liability  as  a  debtor  of  the  defendant. 

§  424.  On  the  first  point  it  may  be  remarked,  that 
it  will  often  happen  that  a  person  garnished  may  have 
personal  property  of  the  defendant  in  his  possession, 
and  yet  not  be  liable  as  garnishee.  Various  considera- 
tions determine  the  question  of  liability,  not  only  as  to 
the  nature  of  the  property  held,  but  as  to  the  circum- 
stances under  which  it  is  held.  The  property  may  not 
be  such  as  is  contemplated  by  the  rule  above  declared, 
or  by  the  particular  statute  under  which  the  individual 
is  garnished  ;  or  his  possession  of  it  may  not  be  such  as 
to  make  him  liable ;  or  the  capacity  in  which  he  holds 
it  may  exempt  him  from  liability;  or  there  may  be 

^i     '  L  '^^^    J 


§424  GARNISHMENT GENERAL   VIEWS.  [CH.  XVIII. 

contracts  in  reference  to  it  which  forbid  his  being 
charged.  Many  such  questions  have  arisen,  eUciting 
acute  discussion  and  learned  adjudication.  We  propose, 
therefore,  to  consider  the  liabiUty  of  a  garnishee,  in 
respect  of  personal  property  of  the  defendant  in  his 
hands,  under  the  following  heads  :  — 

I.  What  personal  property  of  the  defendant  in  the 
garnishee's  possession,  will  make  the  garnishee  liable. 

II.  The  character  of  the  possession  of  personal 
property  by  a  garnishee,  which  will  be  sufficient  to 
charge  him. 

III.  The  garnishee's  liability,  as  affected  by  the  ca- 
pacity in  which  he  holds  the  defendant's  property. 

IV.  The  garnishee's  liability,  as  affected  by  pre- 
vious contracts  touching  the  defendant's  property  in 
his  hands. 

V.  The  garnishee's  liability,  as  affected  by  a  pre- 
vious assignment  of  the  defendant's  property  in  his 
hands,  or  by  its  being  subject  to  a  lien,  mortgage,  or 
pledge. 

[318] 


CHAPTER    XIX. 

WHAT    PERSOXAL    PROPERTY    OF    THE    DEFENDANT,    IN    THE    GAR- 
NISHEE'S  POSSESSION,   WILL   MAKE   THE   GARNISHEE   LIABLE. 

§  425.  The  rule  tliat  the  personal  property  in  the 
garnishee's  hands,  in  respect  of  which  he  may  be 
charged,  must  be  such  as  is  capable  of  being  seized  and 
sold  on  execution,  results  from  the  consideration  that 
he  should  be  at  liberty,  if  he  wish,  to  discharge  himself 
from  ^Decuniary  liability,  by  delivering  the  property 
into  the  custody  of  the  tribunal  before  which  he  is 
summoned ;  and  therefore,  that  he  should  not  be 
charged  for  that  which,  if  so  delivered,  could  not  be 
sold  under  execution.  Therefore,  where  a  garnishee 
admitted  that,  when  summoned,  he  had  in  his  posses- 
sion a  horse  of  the  defendant's,  but  showed  that  the 
horse  was  by  law  exempt  from  execution  against  the 
defendant,  he  was  held  not  to  be  chargeable.^  Hence, 
too,  it  has  been  uniformly  held,  that  one  having  in  his 
possession  promissory  notes,  or  other  choscs  in  action  of 
the  defendant's,  cannot,  in  respect  thereof,  be  charged 
as  garnishee.^- 

^  Davenport  v.  Swan,  9  Humphreys,  18G  ;  Staniels  v.  Raymond,  4  Gush- 
ing, 314. 

2  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438  ;  Perry  v.  Coates,  9  Ibid. 
537 ;  Dickinson  v.  Strong,  4  Pick.  57  ;  Andrews  v.  Ludlow,  5  Ibid.  28  ;  Lup- 

[319] 


§  428  garnishee's    liability    for    property.       [cH.  XIX. 

§  426.  Where  it  appeared  from  the  garnishee's  an- 
swer that  he  had  become  security  for  the  defendant, 
and  that  the  defendant,  in  order  to  indemnify  him,  had 
pLaced  in  his  hands  certain  notes  of  third  persons,  the 
property  of  the  defendant,  it  was  held  that  the  notes, 
not  being  personal  property  capable  of  being  seized 
and  sold  upon  execution,  the  garnishee  was  not  liable ; 
and  it  made  no  difference  whether  the  proceeds  of  the 
notes  were  necessary  or  not  for  the  indemnification  of 
the  garnishee.^ 

§  427.  So  where  the  garnishee  disclosed  that  he  held 
a  certain  amount  of  the  notes  or  bills  of  the  Hillsbo- 
rough Bank,  which  had  been  presented  for  payment 
and  refused,  and  which  belonged  to  the  defendant,  it 
was  decided  that  such  bills  or  notes  were  nothing  more 
than  promissory  notes  negotiable  by  delivery,  and,  be- 
ing mere  cJioses  in  action,  the  garnishee  could  not  be 
charged  in  respect  thereof.^  But  where  a  garnishee 
had  received  for  the  defendant  bank  bills  which  were 
current  as  money,  he  was  charged.^ 

§  428.    So,  where  it  appeared  that  the  garnishee  had 


ton  V.  Cutter,  8  Ibid.  298  ;  Gore  v.  Clisby,  Ibid.  555 ;  Guild  r.  Ilolbrook,  11 
Ibid.  101  ;  Hopkins  v.  Ray,  1  IMetcalf,  79  ;  Meacham  v.  McCorbitt,  2  Ibid. 
.352 ;  N.  H.  I.  F.  Co.  v.  Piatt,  5  New  Ilamp.  193 ;  Stone  r.  Dean,  Ibid.  502 ; 
Hitchcock  V.  Egerton,  8  Vermont,  202 ;  Rundlet  v.  Jordan,  3  Maine,  47 ; 
Copeland  v.  Weld,  8  Ibid.  411 ;  Clark  v.  Viles,  32  Ibid.  32;  Wilson  v.  Wood, 
34  Ibic}.  123;  Fitch  v.  Waite,  5  Conn.  117;  Jones  v.  Korris,  2  Alabama, 
52G  ;  Marston  v.  Carr,  IC  Ibid.  325  ;  Moore  v.  Pillow,  3  Humphreys,  448. 

^  JIaine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438  ;  Dickinson  v.  Strong,  4 
Pick.  57. 

2  Perry  v.  Coates,  9  Mass.  537, 

»  Morrill  v.  Brown,  15  Pick.  173. 

[320] 


CH.  XIX.]     garxisdee's  liability  for  property.         §  431 

received  from  the  defendant  the  evidence  of  a  contract 
made  by  a  third  person,  engaging  to  dehver  to  the  de- 
fendant three  hundred  Rarrels  of  beef  described  as 
being  under  Boylston  Market,  such  contract  was  held 
to  be  a  mere  cliose  in  action^  and  not  attachable  in  the 
garnishee's  hands.^ 

§  429.  So,  where  persons  to  whom  the  defendant 
had  made  an  assignment  for  the  benefit  of  creditors,  of 
goods  and  merchandise,  book  debts,  promissory  notes, 
and  other  clio8c%  in  action,  were  garnished,  under  such 
circumstances  as  that,  if  they  had  had  goods  or  money 
in  their  possession  they  would  have  been  liable,  it  was 
held,  that,  having  only  chases  in  action,  they  could  not 
be  charged.^ 

§  430.  So,  where  an  assignee  for  the  benefit  of  credi- 
tors had  sold  the  assigned  effects  on  credit,  and  taken 
notes  from  the  purchasers,  and  before  the  maturity  of 
the  notes  he  was  garnished,  it  was  decided  that  he 
could  not  be  charged.^ 

§  431.  So,  where  A.  caused  goods  to  be  insured 
against  loss  by  fire,  and  the  policy  provided  that,  in  case 
of  a  loss,  payment  should  be  made  to  B.,  who  held  a 
mortgage  on  the  goods.  The  goods  were  destroyed  by 
fire,  and  immediately  after,  and  before  the  loss  had 
been  proved  according  to  the  provisions  of  the  policy, 


^  Andrews  v.  Ludlow,  5  Pick.  28. 

^  Lupton  V.  Cutter,  8  Pick.  298 ;  Gore  v.  Clisby,  8  Pick.  555  ;  Copeland 
f.  Weld,  8  Maine,  411. 
'  Hopkins  v.  Kay,  1  Metcaif,  79. 

[321] 


§  435  garnishee's   liability   for   property.       [cH.  XIX. 

B.  was  garnislied.  Afterwards  B.  received  the  amount 
of  the  losSj  retained  what  was  due  him,  and  paid  the 
balance  on  A.'s  order  to  a  third  person.  It  was  decided 
that  the  right  to  collect  the  money  accruing  under  the 
policy  was  a  mere  clio^e  in  action,  and  that  B.  was  not 
liable.^ 

§  432.  So,  an  attorney  who  has  in  his  care  a  debt 
in  the  course  of  collection,  belonging  to  a  defendant  in 
attachment,  cannot  be  holden  as  garnishee  on  that  ac- 
count.^ 

§  433.  So,  a  note  deposited  in  one's  hands,  and  not 
collected,  will  not  subject  him  as  garnishee,  even  though 
a  judgment  has  been  recovered  on  it  in  his  name.^ 

§  434.  So,  where  a  person  holds  real  estate  upon  a 
promise  to  sell  it  and  pay  over  the  proceeds,  and  he  sells 
it,  and  takes  notes  for  the  purchase-money,  he  cannot 
be  held  as  garnishee,  in  respect  of  the  notes.* 

§  435.  So,  where  one  had  contracted  to  deliver  to 
another,  at  a  certain  time,  a  note  of  a  third  person  for 
a  given  amount,  and  before  the  time  of  delivery  he  was 
garnished,  it  was  held  that  he  could  not  be  charged.^ 

^  IMeacliam  v.  McCorbitt,  2  Metcalf,  352. 

2  Ilitelicock  V.  Egerton,  8  Vermont,  202;  Fitch  v.  Waite,  5  Conn.  117. 

*  Rundlet  v.  Jordan,  3  Maine,  47. 

*  Quild  V.  Ilolbrook,  11  Pick.  101. 

6  N.  H.  I.  F.  Co.  V.  Piatt,  5  New  Hamp.  193. 

[322] 


CHAPTER   XX. 

THE   CHARACTER   OF   THE   POSSESSION   OF   PERSOXAL   PROPERTY   BY 
A    GARNISHEE,    WHICH    WILL   BE    SUFFICIENT    TO    CHARGE    HIM. 

§  436.  I.  Actual  and  constructive  possession.  AYlien 
a  garnishee  is  summoned,  the  effect  of  the  proceeding 
is  to  attach  any  personal  property  of  the  defendant  in 
his  possession.  And  it  is  a  general  rule  that  the  prop- 
erty must  be  in  the  actual  possession  of  the  garnishee, 
or  within  his  control,  so  that  he  may  be  able  to  turn  it 
out  on  execution.^  But  though  not  in  his  actual  pos- 
session, if  he  have  the  right  to,  and  the  power  to  take, 
immediate  possession,  he  must  be  regarded  as  being  in 
possession.^  Constructive  possession  will  not  suf&ce  to 
make  the  garnishee  liable. 

§  437.  Thus,  where  the  garnishee  had  left  in  the 
hands  of  merchants  in  a  foreign  port,  goods  of  the  de- 
fendant, which  had  been  under  his  charge  as  master  of 
a  schooner,  it  was  held  that  he  was  not  liable  on  account 
of  the  goods,  the  same  not  being  in  his  possession, 
when  he  was  garnished,  though  he  held  the  receipt  of 
the  foreign  merchants  therefor.^     So,  where  goods  were 

^  Andrews  v.  Ludlow,  5  Pick.  28  ;  Burrell  v.  Letson,  1  Strobhart,  239. 

*  Lane  i-.  Nowell,  15  Maine,  86. 

^  Willard  v.  Sheafe,  4  Mass.  235.  This  case  does  not,  in  itself,  appear  to 
have  been  decided  on  this  ground,  but  in  Andrews  i'.  Ludlow,  5  Pick.  28,  it 
is  so  stated  by  Wilde,  J. 

[323] 


§  439         garnishee's  llvbility  for  property,      [ch.  XX. 

consigned  by  merchants  in  Philadelphia  to  merchants 
in  Boston,  and  after  the  latter  received  the  bill  of  lading, 
but  before  the  goods  arrived,  they  were  garnished,  it 
was  decided  that  they  were  not  liable,  not  having  the 
goods  in  possession  when  summoned.^  So,  also,  where 
the  garnishees  stated  that  a  part  of  the  property  trans- 
ferred by  the  defendant  to  them  consisted  of  parts  of 
certain  ships,  with  their  cargoes,  then  at  sea,  they  were 
held  not  chargeable,  because  they  had  not  actual,  but 
only  constructive,  possession  of  the  property.^ 

§  438.  But,  where  the  agent  of  a  garnishee  had  col- 
lected money  for  the  garnishee,  in  respect  of  which  the 
latter  w^ould  have  been  liable,  had  he  himself  received 
it,  he  was  charged,  though  at  the  time  of  the  garnish- 
ment the  money  had  not  been  paid  over  to  him  by  the 
agent.^ 

§  439.  II.  Possession  considered  tvith  reference  io  iwiiity 
of  contract  and  of  interest  hetiveen  the  garnishee  and  the  de- 
fendant. The  garnishee  must  not  only  have  actual  pos- 
session of  the  defendant's  effects,  but  there  must  be, 
except  in  cases  of  fraudulent  dispositions  of  property, 
privity  between  him  and  the  defendant,  both  of  con- 
tract, express  or  implied,  and  of  interest,  by  which  the 
defendant  would  have  a  right  of  action,  or  an  equitable 
claim,  against  the  garnishee,  to  recover  the  property 


^  Grant  v.  Shaw,  IG  Mass.  341.  The  report  of  this  case  does  not  Indicate 
clearly  the  point  stated  in  the  text,  but  in  Andrews  v.  Ludlow,  5  Pick.  28,  it 
is  stated  by  Wilde,  J.,  to  have  been  decided  on  that  ground. 

2  Andrews  v.  Ludlow,  5  Pick.  28. 

^  Ward  V.  Lamson,  G  Pick.  358.  The  question  of  actual  and  constructive 
possession  doer,  not  seem  to  have  been  before  the  court  in  this  case. 

[324] 


en.  XX.]      gaexishee's  liability  for  property.         §  441 

for  liis  own  use,  either  at  the  present  or  some  future 
time.^  The  want  of  privity,  either  of  contract  or  of 
interest,  will  generally  prevent  the  garnishee's  being 
charged.  Property  may  be  in  the  garnishee's  hands  in 
which  the  defendant  has  an  interest,  but  which  the  gar- 
nishee may  be  under  no  legal  obligation  to  deliver  to 
him ;  and  as  the  plaintiff  can  exercise  no  greater  con- 
trol over  the  property  in  such  case  than  the  defendant 
could,  the  garnishee  cannot  be  charged.  There  may, 
too,  be  property  in  the  garnishee's  hands,  the  legal  title 
to  which  is  in  the  defendant,  and  for  which  the  defend- 
ant might  maintain  an  action  against  the  garnishee,  and 
yet  the  latter  not  be  liable  as  garnishee,  because  of 
the  defendant  havino;  no  interest  of  his  own  in  the 
property. 

§  440.  The  doctrine  here  advanced  may  be  illustrated 
by  several  cases  which  have  arisen ;  and  it  will  be  con- 
sidered, Jirsi,  with  reference  to  the  want  of  privity  of 
contract  between  the  garnishee  and  the  defendant,  and, 
second,  with  reference  to  the  want  of  privity  of  interest 
between  them. 

§  441.  1.  Want  of  privit?/  of  contract.  Money  was 
placed  in  the  hands  of  certain  trustees,  to  be  by  them 
appropriated,  at  their  discretion,  for  the  maintenance 
and  support  of  a  son  of  the  donor,  during  his  life,  and 
afterwards  to  distribute  it  among  the  other  children  of 
the  donor.  While  yet  a  portion  of  the  money  was  in 
the  hands  of  the  trustees,  they  were  summoned  as  gar- 


Cushing's  Trustee  Process,  §  101. 

28  [325] 


§443  garnishee's  liability  for  property,      [ch.  XX. 

nisliees  bf  the  son,  and  the  court  held  that  they  could 
not  be  charged  because  they  were  m  no  view  indebted 
to  him,  and  he  could  maintain  no  action  for  the  sum 
committed  in  trust  to  them.^  Here  the  defendant  had 
an  interest  in  the  money  in  the  garnishee's  hands,  but 
there  was  no  privity  of  contract. 

§  442.  A.  made  his  bond  to  B.,  conditioned  to  pay 
B.  a  yearly  sum  during  the  life  of  C,  to  be  applied  by 
B.  to  the  maintenance  of  C,  his  wife  or  family,  or  any 
member  of  it,  according  to  B.'s  judgment  and  discre- 
tion. A.  was  summoned  as  garnishee  of  B.  and  C,  at  a 
time  when  a  portion  of  the  annuity  was  due  and  un- 
j^aid ;  and  the  court  held  that  he  could  not  be  charged 
as  garnishee  of  either,  because,  first,  he  was  under  no 
legal  obligation  to  C,  the  cedui  que  trust,  and  C.  could 
maintain  no  action  against  him  ;  and,  second,  though  B., 
the  trustee,  might  maintain  an  action  against  him  for 
the  money,  yet  B-.  was  to  receive  the  money,  not  for 
his  own  use,  but  to  be  applied  to  the  support  of  C.  In 
other  vv^ords,  between  A.  and  C.  there  was  no  privity 
of  contract,  and  B.  had  no  interest  in  the  money .^ 

§  443.  A  sheriff  attached  goods  of  the  defendants, 
and  employed  an  auctioneer  to  sell  them  at  public  auc- 
tion, and  while  the  proceeds  of  the  sale  w^ere  in  the 
auctioneer's  hands  he  was  summoned  as  garnishee  of 
the  defendant ;  and  it  was  held  that  he  was  not  liable, 
as  there  was  no  privity  between  him  and  the  defend- 


1  "White  V.  Jenkins,  IG  Mass.  G2. 

2  Brigden  r.  Gill,  IG  Mass.  522,     See  Hinckley  v.  Williams,  1  Cusbing, 
490. 

[326] 


CH.  XX.]      garnishee's  liability  for  property.         §  446 

ant,  and  that  he  should  account  to  the  officer  who  em- 
ployed him.^ 

§  444.  A.  received  a  certam  sum  of  money  from  B., 
for  the  express  purpose  of  paying  off  a  mortgage  rest- 
ing upon  the  land  of  C.  A.  was  summoned  as  gar- 
nishee of  C,  and  was  discharged,  because  the  money 
was  not  C.'s,  and  because  there  was  no  privity  between 
A.  and  C? 

§  445.  So,  where  the  agent  of  a  foreign  insurance 
company  was  garnished,  and  it  appeared  that  he  had 
signed  a  policy  of  insurance,  on  behalf  of  the  company, 
on  property  of  the  defendant,  which  was  afterwards 
destroyed  by  fire,  it  was  held  that  he  could  not  be 
charged,  and  the  court  said,  —  "  the  respondent  is  sim- 
ply the  agent  of  persons  in  a  foreign  country.  He  con- 
tracted in  that  character  with  the  defendant  on  behalf 
of  his  principals,  and  acknowledges  nothing  due  from 
them  to  the  defendant.  The  demand  of  the  defendant 
is  upon  the  copartnership  in  London,  and  if  he  had  by 
action  maintained  that  demand,  and  recovered  a  judg- 
ment against  the  copartnership,  it  would  not  follow  that 
the  respondent  was  answerable  as  his  trustee.  Indeed, 
no  state  of  flicts,  which  could  arise  out  of  the  transac- 
tion stated  by  him,  could  fix  him  as  trustee  of  the  de- 
fendant." ^  '    , 

§  446.   So,  where  a  son  was  permitted  to  build   a 


1  Penniman  v.  Ruggles,  6  Mass.  IGG. 

2  Wright  V.  Foord,  5  New  Hamp.  178. 
8  Wells  V.  Greene,  8  Mass.  504. 

[327] 


§  448         garnishee's  liability  for  property,      [cii.  XX. 

house  on  his  father's  land,  under  the  expectation  that 
the  Land  would,  by  devise,  come  to  him  at  the  death  of 
his  father,  and  the  father  was  summoned  as  garnishee 
of  the  son,  it  was  held  that  he  could  not  be  charged, 
because  there  w-as  no  contract,  express  or  implied,  that 
he  should  be  accountable  to  the  son  for  the  value  of 
the  house.-^ 

§  447.  2.  Want  of  pivibj  of  interest.  The  next  class 
of  cases,  illustrative  of  the  general  doctrine  advanced, 
is,  where  there  is  a  privity  of  contract  between  the  gar- 
nishee and  the  defendant,  but  no  privity  of  interest. 
In  such  cases,  though  the  garnishee  have  in  his  posses- 
sion property  or  money  which  he  is  bound  by  contract 
to  deliver  or  pay  to  the  defendant,  and  for  which, 
therefore,  the  defendant  might  maintain  an  action 
against  him,  yet  he  cannot  be  charged  as  garnishee  in 
respect  thereof,  because  the  defendant  himself  has  no 
interest  therein.  Such  are  the  cases  where  the  effects 
in  the  garnishee's  hands  belong  to  the  defendant  as  a 
mere  trustee  or  agent  for  others.  There,  it  is  not  only 
sound  doctrine  technically,  but  in  entire  accordance 
with  every  principle  of  justice,  that  though  the  legal 
title  to  the  effects  in  the  garnishee's  possession  be  in 
the  defendant,  yet  as  they  do  not  in  fact  belong  to  him 
but  to  others,  they  shall  not  be  taken  to  discharge  his 
debts.^ 

§  448.    Therefore,  where  it  appeared  from  the  an- 


1  Wells  V.  Banister,  4  Mass.  514.  * 

"-  Simpson  v.  Ilany,  1  Devereux  &  Battle,  202 ;  Miller  v.  Eichardson,  1 
Missouri,  310. 

[328] 


cii.  XX.]      garnishee's  liability  for  property.         §  450 

swer  of  the  garnishee,  that  he  had  executed  a  bond  to 
the  defendant,  the  condition  of  which  was  that  he 
should  pay  the  defendant  a  certain  sum,  part  of  which 
only  was  the  defendant's  property,  and  the  rest  for  the 
benefit  of  other  persons ;  the  court  held  that  the  gar- 
nishee should  not  be  charged  for  that  part  of  the  bond 
which  was  due  to  the  other  persons,  and,  in  delivering 
their  opinion,  say,  —  "  the  bond  is  made  to  the  defend- 
ant, and  he  had  a  right  to  demand  payment  of  it,  and 
to  sue  it ;  but  still,  as  it  appears  that  in  taking  the  bond 
he  acted  as  the  trustee  of  others,  it  being  given  for  the 
consideration  of  the  purchase  of  an  estate,  the  life  in- 
terest in  which  was  in  his  mother,  and  the  reversionary 
interest  in  his  brothers  and  sisters  and  their  children, 
the  money  secured  by  the  bond  ought  in  equity  to  be 
distributed  amontr  the  devisees  of  the  estate  in  the 
proportions  in  which  they  held  the  estate."  ^ 

§  449.  So,  in  the  case  previously  referred  to,  where 
A.  had  given  a  bond  to  B.,  by  Avhich  he  bound  himself 
to  pay  B.  a  certain  yearly  sum,  to  be  appropriated  to 
the  support  of  C,  and  A.  was  summoned  as  garnishee 
of  B. ;  it  was  held  that  he  could  not  be  charged,  be- 
cause the  money  due  on  the  bond  was  not  his  own,  but 
to  be  appropriated  for  the  use  of  others.^ 

§  450.  So,  where  a  factor  del  credere  sold  goods  of  his 
principal,  without  the  purchaser  knowing  at  the  time 
that  he  was  a  factor,  but  was  afterwards  notified  by  the 
owner  of  the  goods  that  they  were  his ;  it  was  decided 


1  Willard  v.  Sturtcvant,  7  Pick.  104. 

2  Brigden  v.  Gill,  IG  Mass.  522. 

28  *  [  329  ] 


§  451         garnishee's  liability  for  property,     [en.  xx. 

that  the  debt  clue  for  the  goods  belonged  to,  and  was 
claimable  by,  the  prmcipal,  and  that  the  purchaser 
could  not  be  held  as  garnishee  of  the  factor  for  any 
thing  beyond  the  amount  of  the  factor's  lien  for  his 
commission.^ 

§  451.  So,  \Yhere  goods  were  shipped  on  a  vessel, 
and  freight  earned  for  the  transportation  thereof,  and 
the  shipper  was  summoned  as  garnishee  of  the  master 
of  the  vessel,  and  it  appeared  that  the  owners  of  the 
vessel  were  not  indebted  to  the  master,  it  was  held  that 
the  garnishee  was  not  chargeable,  and  the  court  based 
its  decision  on  the  following  grounds  :  "  The  agreement 
of  the  master  operated  to  make  or  create  a  contract 
between  the  owners  and  the  freighters,  as  well  as  be- 
tween the  master  and  the  freighters.  The  master  is 
the  mere  agent  of  the  owners,  removable  at  pleasure. 
He  contracts  on  the  personal  responsibility  of  the  own- 
ers, and  has  no  remedy  for  his  wages,  as  mariners  have, 
against  the  ship.  But,  inasmuch  as  he  may  hypothe- 
cate the  ship,  and  the  freight,  and  the  cargo,  for  neces- 
saries in  a  foreign  port,  it  has  been  held  in  Massachu- 
setts and  New  York,  contrary  to  the  English  decisions, 
that  he  has  a  lien  upon  the  freight  for  necessary  dis- 
bursements and  expenses.  And  the  able  judge  of  the 
United  States  court  of  this  district,  has  extended  the 
claim  also  to  his  wages.  But  with  the  question,  for 
what  miitters  or  claims  the  master  may  have  a  lien  on 
the 'freight,  we  have,  in  the  case  at  bar,  no  concern; 
for  the  master  has  been   fully  ^^^i^   by  the  owners. 


^  Titcomb  v.  Seavcr,  4  Maine,  542. 

[330] 


CH.  XX.]     garnishee's  liability  for  property.         §  454 

They  may,  therefore,  compel  the  payment  of  freight  to 
themselves.  The  master,  under  these  circumstances, 
has  no  more  right  to  the  freight  money  than  he  has  to 
the  ship.     Both  belong  to  the  owners."  ^ 

§  452.  We  see  from  the  foregoing  citations  the  force 
and  scope  of  the  doctrine  laid  down,  that  privity  of 
contract  and  of  interest  must  in  general  comljine  to 
justify  charging  the  garnishee;  and  wherever  such 
combination  exists  there  is  a  right  of  action  in  the  de- 
fendant against  the  garnishee,  either  at  the  present  or 
a  future  time.  The  presentation  of  a  few  cases  illustra- 
tive of  this  point  will  close  the  consideration  of  this 
branch  of  the  subject. 

§  453.  Where  property  is  placed  in  the  hands  of 
one,  to  be  sold,  and  the  proceeds  applied  to  a  particu- 
lar purpose,  and  upon  the  sale  there  appears  a  surplus 
of  money  over  what  is  necessary  for  the  given  purpose, 
he  will  be  held  as  garnishee  of  the  person  to  whom  the 
property  belonged,  because  privity  of  contract  combines 
with  privity  of  interest  to  give  the  defendant  a  right  of 
action  to  recover  the  surplus.^ 

§  454.  So,  for  the  same  reason,  one  holding  real 
estate  of  the  defendant  in  his  own  name,  but  in  trust 
for  the  defendant,  and  accountable  to  the  defendant 
for  the  rents  and  profits  thereof,  or  for  the  proceeds  of 

1  Richardson  v.  Whiting,  18  Pick.  530. 

2  Pierson  v.  Weller,  3  Mass.  564  ;  N.  E.  Marine  Ins.  Co.  v.  Chandler,  16 
Mass.  275;  Webb  v.  Peale,  7  Pick.  247;  Pvichards  v.  Allen,  8  Pick.  405  ; 
Hearn  v.  Crutcher,  4  Yerger,  461. 

•         [331] 


§  456         garnishee's  liability  foe,  property,     [en.  xx. 

the  same,  if  sold,  will  be  held  as  garnishee  of  the  de- 
fendant to  the  amount  of  the  rents  and  profits  in  his 
hands.^ 

§  455.  So,  where  the  principal  in  a  bond  to  the 
United  States,  having  become  a  defaulter  and  left  the 
country,  his  surety  paid  without  suit  $1,000,  and  then 
arrested  the  principal  in  Matanzas,  in  a  suit  on  a  bond 
of  indemnity,  and  upon  receiving  $2,000  gave  this  bond 
up  to  the  principal.  The  bond  to  the  United  States 
was  afterwards  put  in  suit,  and  the  judgment  recovered 
on  it  was  satisfied  by  a  levy  upon  land  supposed  to  be- 
long to  the  principal,  which  the  United  States  after- 
w^ards  sold,  and  the  sum  paid  by  the  surety  was  re- 
stored to  him.  After  this  the  surety  was  summoned  as 
garnishee  of  the  principal,  and  it  was  held  that  the 
principal  was  entitled  to  recover  back  the  money  paid 
in  Matanzas,  and  that  the  surety  was  therefore  liable 
as  his  garnishee.^ 

§  456.  So,  where  property  claimed  by  A.,  being 
libelled  in  an  admiralty  court  as  a  prize,  was  delivered 
to  B.,  to  indemnify  him  for  bonds  given  by  him  in  that 
court  in  behalf  of  A.,  and  after  a  decree  of  restitution 
by  which  the  bonds  so  given  were  discharged,  B.  was 
summoned  as  garnishee  of  A.,  he  was  held  as  such,  be- 
cause A.  had  a  right  of  action  against  him  to  recover 
the  property  so  delivered.^ 


1  Russell  V.  Lewis,  15  Mass.  127. 

2  W^atklns  v.  Otis,  2  Pick.  88. 

^  Thompson  v.  Stewart,  3  Conn.  171. 


o  on  1 


CH.  XX.]      garnishee's  liability  for  property.         §  459 

§  457.  So,  where  one  contracts  to  purchase  goods, 
on  certam  conditions  to  be  by  him  performed,  and  re- 
ceives the  goods  into  his  possession,  but  fails  to  perform 
the  conditions,  the  vendor  of  the  goods  has  a  right  of 
action  to  recover  the  goods,  and  the  vendee  will  there- 
fore be  charged  as  his  garnishee  in  respect  thereof.-^ 

§  458.  But  it  is  not  always  necessary  that  privity  of 
contract  and  of  interest  should  combine  to  render  the 
garnishee  liable.  Where  there  is  privity  of  contract 
but  not  of  interest,  but  the  position  of  affiiirs  between 
the  garnishee  and  the  defendant  is  such  that,  to  exempt 
the  garnishee  from  liability,  would  tend  to  an  evasion 
of  the  force  and  effect  of  the  law,  and  to  open  the  door 
for  fraud,  the  garnishee  will  be  charged,  though  the 
privity  of  interest  do  not  exist.  This  appeared  in  a 
case  in  Pennsylvania,  which  is  of  suf&cient  importance 
to  justify  an  extended  statement  here. 

^  459.  In  an  attachment  ag-ainst  A.,  the  Bank  of  the 
United  States  was  summoned  as  garnishee,  and  it  ap- 
peared that  after  the  garnishment,  (an  attachment  in 
Pennsylvania  having  the  effect  of  holding  effects  com- 
ing into  the  garnishee's  hands  after  he  is  garnished,)  the 
defendant  deposited  in  the  bank  sundry  sums  of  money, 
and  also  procured  the  bank  to  purchase  or  discount 
drafts  drawn  by  him  in  his  own  name,  the  proceeds  of 
which  were  passed  to  his  credit.  The  moneys  thus 
passed  to  the  defendant's  credit  were  drawn  out  on  his 
checks.  It  appeared  that  though  the  accounts  were 
kept  with  the  defendant  in  his  own  name,  he  was  in 

^  Emery  v.  Davis,  17  Maine,  252. 

r  oo o  n 


§  459  garnishee's    liability    for   property.       [cH.  XX. 

fact  the  agent  of  others  in  all  the  transactions,  and  the 
jury  found  that  all  the  funds  were  deposited  and  drawn 
out  by  him  as  agent  for  others.  Notwithstanding  the 
jury  thus  found,  the  court  held  that  the  bank  was  lia- 
ble as  garnishee  of  A.,  and  sustained  its  judgment  by 
the  following  views. 

"  The  attachment  is  in  rem,  for  the  purpose  of  com- 
pelling the  appearance  of  the  defendant ;  and  if  he,  in- 
stead of  drawing  this  money  out  of  the  bank,  had  ap- 
peared and  entered  bail  to  the  action,  the  money  would 
have  been  free,  and  the  bank  might  then  have  paid  it 
to  him.  But  the  garnishee  chose  to  be  the  sole  judge 
and  umpire,  and  to  pay  out  the  money  to  him  on  his 
checks,  thus  in  fact  recognizing  his  right  to  the  posses- 
sion and  control  of  the  money,  and  yet  taking  the  haz- 
ard of  defeating  the  object  of  the  attachment.  The 
first  question  that  occurs  is  this :  could  the  bank,  if  the 
attachment  had  not  been  served,  have  resisted  the 
claim  of  the  defendant  to  the  money  he  had  deposited 
with  them  ?  They  received  it  and  the  bills  as  his,  en- 
tered them  on  their  books  as  his,  and  were  bound,  in 
the  absence  of  any  attachment,  to  have  paid  the  funds 
to  him.  How,  then,  were  they  placed  in  any  better 
situation  by  the  service  of  the  attachment  ?  The  at- 
taching creditor  stands  in  the  place  of  the  defendant. 
If  the  bank  could  not  allege  as  against  the  defendant, 
that  the  funds  were  not  his,  neither  can  they  allege 
against  the  attaching  creditor  that  they  are  not  the  de- 
fendant's, and  yet  turn  round  and  pay  the  money  to 
the  defendant,  to  enable  him  to  defeat  his  creditor.  In 
Sergeant  on  Attachment,  p.  94,  it  is  said  that  the  gar- 
nishee may  plead  every  tliiijg  to  the  scire  facias  which 
he  could  plead  against  the  defendant ;  and  if  the  bank 
[334] 


CH.  XX.]     garnishee's  liability  for  property.         §  459 

could  have  pleaded  against  the  defendant  that  the 
money  and  the  products  of  the  bills  were  not  his,  why 
did  they  pay  them  to  him  after  being  warned  by  at- 
tachment? The  law  countenances  not  those  operations 
by  which  its  legitimate  force  and  effect  may  be  evaded. 
Thus  in  the  case  of  Silverwood  v.  Bellas,  8  Watts,  420, 
it  was  resolved  that  Silverwood,  the  garnishee,  who  had 
received  money  in  trust  to  deliver  it  over  to  the  defend- 
ant, was  liable  because  he  did  deliver  it  ov^r.  Here  it 
cannot  be  gainsaid  that  the  bank  was  bound  to  de- 
liver over  the  money  to  the  defendant  in  the  absence 
of  the  attachment. 

"  The  ownership  of  the  defendant  is  evidenced  and 
maintained  by  the  customary  evidence  of  right,  that  is, 
the  deposit  in  the  bank  in  his  own  name,  the  books  of 
the  bank,  the  drawing  of  bills  and  checks  in  his  own 
name.  Under  these  circumstances  it  is  against  public 
policy  that  the  bank  should  be  permitted  to  allege  that 
the  books  were  false  for  the  purpose  of  defeating  the 
creditor,  and  yet  true  for  the  purpose  of  paying  over 
the  funds  to  the  defendant.  .  .  .  We  fear  it  would  open 
too  wide  a  door  for  the  infliction  of  fraud,  if  such  prac- 
tices w^ere  tolerated.  An  individual  made  out  to  be 
insolvent,  may  have  §100,000,  nay,  twice  that  amount, 
in  a  bank,  entered  on  its  books  in  his  own  name,  his 
checks  accepted  and  paid.  What  amount  of  credit  may 
he  not  obtain  upon  this  lure  held  out  to  the  commu- 
nity ?  If  the  cashier,  and  the  party  claiming  the 
money,  or  au}^  other  persons,  are  permitted  to  prove 
that  the  entries  are  untrue,  that  the  depositor  has  not 
a  cent  in  the  bank,  the  injury  may  be  deep  and  griev- 
ous to  credit,  and  the  source  of  severe  loss  to  those 
who  have  put  faith  in  the  integrity  and  uprightness  of 

[335] 


§  459         garnishee's  liability  for  property,     [ch.  XX. 

banking  institutions.  .  .  .  The  garnishee  after  having 
paid  the  money  to  the  defendant,  and  by  its  own  books, 
papers,  and  records,  given  the  evidence  that  it  was  his, 
shall  not  be  permitted  to  allege  the  contrary  for  the 
purpose  of  protecting  itself  in  a  wrongful  act.  The  duty 
of  the  garnishee  was,  having  received  the  money  and 
bills  as  the  money  and  bills  of  the  defendant  himself,  to 
have  retained  them  until  liberated  by  due  course  of 
law.  .  .  .  I^en  suppose  that  the  defendant  got  this 
money  from  many  persons,  and  used  it  as  his  own,  he 
became  the  debtor  of  those  persons,  and  they  lost  their 
grip  on  the  fund.  And  by  mingling  this  fund  with  the 
products  of  the  bills,  domestic  and  foreign,  and  using 
the  whole  as  his  own,  ad  libitum,  and  depositing  it  as 
such  in  the  bank,  this  deposit  in  the  bank,  so  made  and 
evidenced,  created  a  debt  or  duty  from  the  bank  to  the 
defendant,  and  not  any  specific  or  distinct  debt  or  duty 
to  the  parties  whose  money  it  is  alleged  it  in  fact  was. 
The  debt  or  duty  was  to  the  defendant  in  mass ;  and 
by  paying  it  to  him  in  the  face  of  an  attachment  and 
garnishment,  the  bank  became  liable  to  the  plaintiff  in 
attachment."^ 

1  Jackson  v.  Bank  U.  S.,  10  Penn.  State,  Gl. 

[336] 


CHAPTER  XXI. 

THE  GAEXISHEE'S  LIABILITY,  AS  AFFECTED  BY  THE  CAPACITY  IN 
WHICH  HE  HOLDS  THE  DEFENDANT'S  PROPERTY. 

§  4G0.  The  frequent  occasions  when  money  or  other 
property  is  in  the  hands  of  officers  of  the  law,  and  of 
persons  acting  nnder  legal  authority,  naturally  give 
rise  to  efforts  to  reach  it  by  attachment  against  the  in- 
dividuals claiming  it,  or  to  whom  it  might  be  supposed 
to  belong.  We  consecpiently  find  that  such  efforts 
have  been  made  in  reference  to  almost  all  descriptions 
of  persons  holding  property  or  money  under  official  or 
legal  authority.  Administrators,  executors,  and  guar- 
dians, ministerial,  judicial,  and  disbursing  officers,  and 
municipal  corporations,  have  all  at  times  been  subjected 
to  garnishment,  and  numerous  adjudications  as  to  their 
liability  have  been  the  result.  We  will  review  the  de- 
cisions which  have  been  made. 

§  4G1.  In  Massachusetts,  at  an  early  day,  the  princi- 
ple was  established  that  a  public  officer  who  has  money 
in  his  hands  to  satisfy  a  demand,  which  one  has  upon 
him  merely  as  a  public  officer,  cannot  for  this  cause  be 
adjudged  a  garnishee.^     The  case  was  that  of  a  county 


^  Chealy  v.  Brewer,  7  Mass.  259.     Sec  Bulkley  v.  Eckert,  3  Penn.  State, 
368. 

29  [337] 


§  463  garnishee's    liability    for    property.       [cH.  XXL 

treasurer,  who  disclosed  in  his  answer  that  he  had  a 
certain  sum  of  money  in  his  possession  officially,  which 
was  due  to  the  defendant  for  services  as  a  juror,  and 
which  he  was  by  law  bound  to  pay  to  the  defendant. 
The  court  decided  against  the  garnishment  on  two 
grounds,  one,  having  relation  to  the  peculiar  statute  of 
the  State,  the  other  as  stated  above  ;  but  it  is  evident 
that  had  the  former  ground  not  existed,  the  latter 
would  have  been  considered  sufficient. 

§  462.  The  same  principle  was  recognized  in  Con- 
necticut. There  the  State's  attorney  commenced  a 
suit  in  the  name  of  the  county  treasurer,  on  a  forfeited 
bail-bond,  taken  in  a  criminal  proceeding  ;  and  during 
the  pendency  of  the  suit  the  general  assembly,  on  the 
application  of  the  person  suffering  by  the  offence  com- 
plained of,  directed  the  money  which  should  be  recov- 
ered on  such  bond,  to  be  paid  over  to  him ;  the  attor- 
ney afterwards  received  the  money  due  on  the  bond ; 
and  while  it  was  in  his  hands,  before  any  demand  upon 
him,  a  creditor  of  the  person  to  whom  the  general  as- 
sembly had  directed  the  money  to  be  paid,  caused  the 
attorney  to  be  garnished.  It  was  held  that  the  attor- 
ney having  received  and  held  the  money  in  his  official 
capacity,  as  agent  of  the  public,  the  garnishment  was 
not  sustainable.-^ 

§  463.  The  Supreme  Court  of  Massachusetts  took  a 
step  farther  and  announced  the  broader  principle  that 
no  person  deriving  his  authority  from  the  law,  and 
obliged  to  execute  it  according  to  the  rules  of  law,  can 

^  Stillman  v.  Isham,  11  Conn.  124. 

[338] 


CH.  XXI.]     garnishee's  liability  for  property.         §  465 

be  charged  as  garnishee  in  respect  of  any  money  or 
property  held  by  him  in  virtue  of  that  authority.^  This 
decision  was  elicited  by  the  garnishment  of  an  adminis- 
trator, and  was  based  upon  the  principle  stated,  w^ithout 
reference  to  the  statute  under  which  the  process  issued. 
But  this  immunity  extends  only  to  the  person  himself, 
thus  holding  money  or  property  in  virtue  of  such  au- 
thority. Therefore,  one  who  had  collected  for  A.  B., 
executor,  a  deceased  person,  the  amount  of  a  promis- 
sory note  made  payable  to  A.  B.,  as  executor,  was  charged 
as  garnishee  in  a  suit  against  A.  B.  in  his  private  ca- 
pacity.^ 

§  464.  Having  stated  the  general  rule,  we  proceed 
to  examine  its  application  to  the  various  descriptions  of 
persons  holding  money  or  property  in  an  official  or 
legal  capacity. 

§  465.  1.  Administrators.  In  the  case  just  cited,  the 
garnishee  answered  that  he  had  no  goods,  effects,  or 
credits  of  the  defendant  in  his  possession,  except  as  he 
w^as  administrator  of  P.  B.,  deceased ;  that  previous  to 
the  death  of  the  said  P.  B.,  the  defendant  had  com- 
menced a  suit  against  P.  B.,  to  recover  the  value  of 
certain  hides,  which  suit  was  pending  at  the  time  of  the 
garnishee's  answer.  The  court,  without  adverting  to 
the  facts  of  the  case,  or,  as  before  stated,  to  the  terms 
of  the  statute,  laid  down  the  comprehensive  rule  above 
indicated,  merely  adding,  —  "we  have  determined  this 
in  the  case  of  public  officers,  and  the  reason  of  those 


1  Brooks  V.  Cook,  8  Mass.  246.     See  Mock  v.  King,  15  Alabama,  GG. 
"  Coburn  v.  Ansart,  3  Mass.  319. 

[339] 


§  4G8  garnishee's    liability   for   property.       [cH.  XXI. 

decisions  applies  with  equal  force  to  the  case  of  an  ad- 
ministrator." 


§  466.  The  Supreme  Court  of  Maine  recognized  and 
enforced  the  same  principle,  in  a  case  where  the  intes- 
tate was  clearly  indebted  to  the  defendant,  and  the  ad- 
ministrator had  money  in  his  hands  ready  to  pay  the 
debt.i 

§  467.  In  Arkansas,  administrators  are  considered 
exempt  from  garnishment,  even  after  a  demand  has 
been  allowed  against  the  estate,  in  favor  of  the  defend- 
ant, and  an  order  made  by  the  probate  court  upon  the 
administrator  to  pay  it.^  And  in  North  Carolina,  it  was 
decided  that  an  administrator  cannot  be  required  to 
answer  as  garnishee  whether  his  intestate  was  indebted 
to  the  defendant.'^ 

§  468.  In  New  Hampshire,  in  Delaware,  and  in  Mis- 
souri, however,  while  the  principle  announced  in  Mas- 
sachusetts was  recognized  as  sound,  it  was  considered  to 
be  inapplicable,  where  the  administrator  had  been,  by 
the  proper  tribunal,  adjudged  and  ordered  to  pay  a  cer- 
tain sum  to  a  creditor  of  the  estate ;  and  in  such  case 
the  administrator  was  charged  as  garnishee  of  the  party 
to  whom  the  money  was  ordered  to  be  paid.^  The 
reason  of  this  excejDtion  was  given  by  the  Superior 


1  Waite  V.  Osborne,  11  Maine,  185. 

-  Thorn  V.  AVoodruil",  5  Arkansas,  55. 

^  'Welch  r.  Gurley,  2_ Haywood,  334  ;  Gee  v.  AVarwick,  Ibid.  354. 

*  Adams  r.  Barrett,  2  New  Hamp.  374;  Fitchett  v.  Dolbec;,  3  Ilan-ington, 
2G7;  Cusling  u.  Hyde,  10  Missouri,  374;  Richards  v.  Griggs,  16  Missouri, 
410. 

[340] 


CH.  XXI.]     gaexishee's  liability  for  property.        §  469 

Court  of  New  Hampshire,  and  adopted  by  the  Supreme 
Court  of  Missouri.  In  the  language  of  the  former,  "an 
administrator,  till  he  is  personally  liable  to  an  action  in 
consequence  of  his  private  promise,  the  settlement  of 
the  estate,  some  decree  against  him,  or  other  cause,  can- 
not be  liable  to  a  trustee  process.  Because,  till  some 
such  event,  the  principal  has  no  ground  of  action  against 
him  in  his  private  capacity ;  and  he  is  bound  to  account 
otherwise  for  the  funds  in  his  hands.  The  suit  against 
him,  till  such  an  event,  is  against  him  in  his  represen- 
tative capacity,  and  the  execution  must  issue  to  be 
levied  de  bonis  iesicdoris,  and  not  de  bonis  jjjvjmis.  But 
in  the  present  case,  the  trustee  was  liable  in  his  private 
capacity  to  the  defendant  for  the  dividend.  The  debt 
had  been  liquidated,  and  a  decree  of  payment  passed. 
The  debt  was  also  due  immediately.  Execution  for  it 
would  run  against  his  own  goods ;  and  the  trustee  pro- 
cess would  introduce  neither  delay  nor  embarrassment 
in  the  final  settlement  of  the  estate."  ^ 

§  469.  In  Vermont,  where  an  administrator  had  been 
decreed  by  the  probate  court  to  deliver  property  to  a 
female  distributee  of  the  estate,  and  was  afterwards 
summoned  as  garnishee  of  the  husband  of  the  distrib- 
utee, the  court  admitted  the  general  principle  of  the 
exemption  of  an  administrator  from  garnishment,  but  in 
view  of  the  peculiar  statute  of  that  State,  and  of  the 
fact  that  a  decree  of  distribution  had  passed,  charged 
the  administrator  as  garnishee.^ 


^  Adams  v.  Barrett,  2  New  Ilamp.  3  74, 
-  Parks  r.  Iladlev,  9  Vermont,  320. 

29===    '•  [341] 


§  472  garnishee's    liability    for    PROrERTY.       [CII.  XXI. 

§  470.  In  PeniTSjlvania,  under  a  statute  which  in 
terms  authorized  the  garnishment  of  administrators,  it 
was  held  that  a  distributive  share  of  personal  estate 
could  not  be  attached  before  the  administrator  had  set- 
tled his  account,  so  as  to  show  what  is  due  from  him  to 
the  distributee.^  And  in  Massachusetts,  where  a  similar 
statute  now  exists,  it  Avas  decided  that  an  administrator 
cannot  be  chars-ed  under  a  writ  served  on  him  between 
the  time  when  administration  is  decreed  to  him,  and 
that  of  the  filing  and  approval  of  his  bond  and  the  de- 
livery of  letters  to  him.^ 

§  471.  2.  Executors.  It  is  well  settled  in  England 
and  the  United  States,  as  a  general  proposition,  that  an 
executor  cannot  be  held  as  garnishee  in  respect  of  a 
pecuniary  legacy  bequeathed  by  his  testator.^  To  this, 
however,  an  exception  would  be  made,  as  in  the  case  of 
administrators,  where  the  executor  has  been  ordered 
by  the  probate  court  to  pay  the  amount  to  the  legatee.'^ 

§  472.  The  earliest  American  case  on  this  subject 
with  which  we  are  acquainted,  came  up  in  Massachu- 
setts ;  where  it  was  held  that  a  pecuniary  legacy  in  the 
hands  of  an  executor  is  neither  "  goods,  effects,  nor  cred- 
its;"   and  that  the  same  principles  which  exempt  a 

^  Bank  of  Chester  v.  Ealston,  7  reuu.  State,  482 ;  McCreary  v.  Topper,  10 
Ibid.  419. 

*  Davis  V.  Davis,  2  Gushing,  111. 

3  Triv.  Lond.  2G7  ;  Toller  on  Executors,  4th  Am.  Ed.  478  ;  Barnes  v.  Treat, 
7  INIass.  271;  WinehcU  v.  Allen,  1  Conn.  385;  Beekwith  v.  Baxter,  3  New 
Ilamp.  67 ;  Shewell  v.  Keen,  2  Wharton,  332  ;  Barnctt  v.  Weaver,  Ibid.  418  ; 
Piequet  v.  Swan,  4  Mason,  443. 

*  Fitchett  V.  Dolbee,  3  Harrington,  2C7. 

[342] 


CH.  XXI.]     garnishee's  liability  for  property.         §  473 

public  officer  from  garnishment  apply  with  equal  force 
to  the  case  of  an  executor ;  and  this  without  reference 
to  whether  the  garnishment  took  place  before  or  after 
the  probate  of  the  will.^ 

§  473.    The  same  point  came  up  in  a  similar  case  in 
Connecticut,  where  the  garnishment  took  place  after 
the  probate  of  the  will,  and  the  acceptance  by  the  ex- 
ecutor of  his  appointment.     The  court  below  instructed 
the  jury  that  the  executor  was  in  contemplation  of  law 
the  debtor  of  the  defendant,  the  legatee,  and  liable  to 
pay  the  plaintiff's  claim  out  of  his  own  estate.     The 
Supreme  Court,  in  deciding  the  case,  use  the  following 
lano-aao-e.     "  xin  executor  cannot  be  considered  as  the 
debtor  of  a  legatee.     The  claim  is  against  the  testator 
or  his  estate ;  and  the  executor  is  merely  the  repre- 
sentative of  the  deceased.     There  cannot  be  a  debt  due 
from  the  executor  within  the  meaning  of  the  statute. 
Nor  can  a  person,  like  an  executor,  deriving  his  author- 
ity from  the  law,  and  bound  to  perform  it  according  to 
the  rules  prescribed  by  law,  be  considered  as  a  trustee, 
agent,  attorney,  or  factor  within  the  statute ;    and  this 
for  the  best  of  reasons.     In  the  common  case  of  agents, 
trustees,  and  factors,  the  creditor  can  easily  place  him- 
self in  the  shoes  of  the  absconding  debtor,  and  prosecute 
his  claim  without  inconvenience  to  the  garnishee.    But 
such  would  not  be  the  case  with  an  executor.     It  would 
not  only  embarrass  and  delay  the  settlement  of  estates, 
but  would  often  draw  them  from  courts  of  probate, 
where  they  ought  to  be  settled,  before  the  courts  of 
common  law,  who  would  have  no  power  to  adjust  and 


1  Barnes  v.  Treat,  7  Mass.  2  71. 

[  343  ] 


§  474  garnishee's    liability   for   property.       [cH.  XXI. 

settle  his  accounts.  Such  an  interference  might  pro- 
duce much  inconvenience,  and  prevent  the  executor 
from  executing  his  office  as  the  law  directs."  ^ 

§  474.  This  subject  received  an  elaborate  and  able 
consideration  by  the  Supreme  Court  of  Pennsjlvania, 
in  a  case  where  the  amount  involved  was  large,  and  the 
wdiole  subject  was  fully  investigated  by  eminent  coun- 
sel. The  question  presented  was  in  effect  the  same  as 
in  the  cases  which  arose  in  Massachusetts  and  Connec- 
ticut, and  the  court  say, —  "In  every  case  in  which  a 
determination  has  taken  place  on  the  question  whether 
a  foreign  attachment  would  lie  for  a  legacy,  it  has  been 
held  that  it  would  not ;  and  some  of  these  cases  have 
occurred  under  statutory  regulations  on  the  subject, 
ver}^  similar  to  our  own.  Various  reasons  have  been 
given  for  coming  to  this  result ;  and  a  little  reflection 
convinces  us  that  the  proceedings  by  foreign  attach- 
ment, cannot  be  applied  to  the  case  of  a  legacy,  without 
great  inconvenience  and  manifest  incongruity. 

"  A  pecuniary  legacy  is  not  a  debt.  It  is  a  sum  of 
money,  payable  by  the  executor  or  administrator  out 
of  the  estate  of  the  decedent,  if  sufficient  assets  remain 
in  his  hands,  after  discharging  the  debts  of  the  deceased, 
and  other  responsibilities,  and  provided  the  legatee  pre- 
viously complies  with  certain  requisites  prescribed  by 
the  acts  of  assembly.  Generally  it  is  not  recoverable 
at  law,  but  is  subjected  to  chancery  jurisdiction,  which 
treats  the  executor  as  trustee  of  the  estate  for  the  ben- 
efit of  those  interested  in  it.  In  Pennsylvania,  a  legacy 
is  recoverable  in  a  common  law  court,  by  the  act  of 


^  Wincliell  v.  Allen,  1  Conn.  385. 

[344] 


CH.  XXI.]     garnishee's  liability  for  property.         §  ^T-i 

1772,  there  being  uo  court  of  chancery;  but  that  act 
gives  peculiar  powers  to  the  court ;  and  the  executor's 
duty  is  still  in  nature  of  a  trust,  in  relation  to  legacies ; 
and  they  are  payable  only  on  the  performance  of  cer- 
tain conditions  by  the  legatee.  He  must  make  a  pre- 
vious demand,  and  must  tender  or  file  a  refunding  bond, 
not  so  much  for  the  protection  of  the  executor,  as  for 
the  benefit  of  creditors  who  may  subsequently  establish 
claims  against  the  estate.  If  a  foreign  attachment  be 
permitted,  by  which  the  assets  in  the  hands  of  the  ex- 
ecutor are  to  be  eventually  appropriated  to  the  attach- 
ing creditor,  the  legacy  may  be  recoverable  without 
demand,  and  without  filing  a  refunding  bond.  For  the 
legatee  would  not  be  expected  to  give  such  bond,  and 
there  exists  no  power  in  the  court  to  compel  the  attach- 
ino^  creditor  to  do  it,  or  to  authorize  the  executor  to  re- 
ceive  it  from  him.  If  the  refunding  bond  could  be 
given,  an  extraordinary  result  might  follow.  The  plain- 
tiff, before  the  payment  of  the  money  by  the  garnishee, 
alwavs  sives  security  to  restore  the  amount  received,  if 
within  a  year  and  a  day  the  defendant  should  appear 
to  disprove  the  debt.  If  within  the  year  and  day,  the 
defendant  issue  his  scire  facias  ad  cliqjrohandum  dehitmriy 
and  succeeds,  and  recovers  back  his  legacy,  he  then  gets 
it  without  giving  any  refunding  bond ;  and  the  plaintiff 
may  be  compelled  in  the  event  of  new  debts  against 
the  estate  being  afterwards  established,  to  pay  the 
amount  a  second  time  on  his  refunding  bond.  Such 
consequences  evince  that  the  process  by  foreign  attach- 
ment cannot  be  harmonized  with  the  acts  of  assembly 
concerning  the  recovery  of  legacies. 

"  Another  circumstance  of  w^eight  is,  that  an  executor 
or  administrator  is,  to  a  certain  extent,  an  officer  of  the 

[340] 


§  474  garnishee's    liability    for   property.       [cH.  XXL 

law,  clothed  with  a  trust  to  be  performed  under  pre- 
scribed resrulations.  It  would  tend  to  distract  and  em- 
barrass  those  officers,  if,  in  addition  to  the  ordinary  du- 
ties which  the  law  imposes,  of  themselves  often  multi- 
plied, arduous,  and  responsible,  they  were  drawn  into 
conflicts  created  by  the  interposition  of  creditors  of  leg- 
atees, and  compelled  to  withhold  payment  of  legacies 
without  suit ;  to  suspend  indefinitely  the  settlement  of 
estates;  to  attend,  perhaps,  to  numerous  rival  attach- 
ments ;  to  answer  interrogatories  on  oath,  and  to  be  put 
to  trouble  and  expense  for  the  benefit  of  third  persons, 
no  way  connected  with  the  estate,  nor  within  the  duties 
of  their  trust.  It  has  been  decided  that  money  in  the 
hands  of  a  prothonotary  or  sheriff  cannot  be  intercepted 
by  a  creditor  of  the  party  entitled  to  it ;  but  it  must 
be  paid  over  to  himself  only.  The  case  of  an  executor 
or  administrator  is  analogous  to  that  of  a  sheriff  or  pro- 
thonotary. He  has  the  funds  in  his  hands  as  an  officer 
or  trustee  authorized  by  law ;  and  if  a  new  party  were 
allowed  to  levy  on  it  by  attachment,  there  would  be  no 
end  of  disputes  and  lawsuits ;  and  no  business  could  be 
certain  of  ever  being  brought  to  a  close  within  a  rea- 
sonable time.  It  is  of  great  importance  to  the  interests 
of  heirs,  creditors,  and  legatees,  that  the  affairs  of  a  de- 
cedent's estate  be  kept  as  simple  and  distinct  as  possi- 
ble, that  its  concerns  be  speedily  closed  and  the  estate 
adjusted.  It  is  moreover  settled  that  an  executor  can- 
not be  sued  as  defendant,  in  an  attachment  by  a  cred- 
itor of  the  testator,  and  the  goods  of  the  testator 
attached  to  recover  the  debt.  The  reason  is  that  the 
estate  of  the  testator  ought  to  come  into  the  hands  of 
the  executor,  that  he  may  administer  it  according  to 
law ;  and  pay  the  debts  if  the  assets  suffice ;  and  they 
[346] 


en.  xxl]     garnishee's  liability  for  tropertt.         §  476 

ought  not  to  be  stopped,  and  the  executor  subjected  to 
new  responsibilities  by  proceedings  in  attachment. 
These  reasons  apply  with  equal  force  to  the  attempt  to 
make  an  executor  garnishee,  for  the  purpose  of  paying 
out  of  the  assets  in  his  hands  the  debt  due  to  a  creditor 
of  a  legatee.  These  funds  must  travel  only  in  the  path 
pointed  out  by  the  laws  relating  to  decedents'  estates, 
in  their  various  branches,  and  cannot  be  diverted  out  of 
that  path  without  interfering  with  salutary  regulations, 
and  violating  some  of  the  most  important  provisions  of 
the  acts  of  assembly."  ^ 

§  475.  While,  however,  an  executor  cannot  be 
charged  as  garnishee  in  respect  of  a  legacy  bequeathed 
by  his  testator,  it  does  not  follow  that  in  no  case  can  a 
legacy  be  subjected  to  attachment  against  the  legatee ; 
for,  if  land  be  devised  with  a  legacy  charged  upon  it, 
the  devisee  will  be  held  as  garnishee  of  the  legatee,  in 
respect  of  the  legacy.^ 

§  476.  Guardians.  Persons  acting  as  guardians  of 
infants  are  considered  to  stand  in  the  same  position  as 
administrators  and  executors,  and  to  come  within  the 
general  principle  before  stated,  and,  therefore,  not  lia- 
ble as  garnishees  in  respect  of  property  of  their  wards 
in  their  possession,  as  guardians.^  So  in  New  Hamp- 
shire with  regard  to  a  guardian  of  an  insane  person,  at 


1  Shewell  v.  Keen,  2  Wharton,  332;  Barnett  v.  Weaver,  Ibid.  418.     See 
Young  V.  Young,  2  Hill,  S.  C.  425. 

2  Piper  I'.  Piper,  2  Xew  Hamp.  439  ;  Woodward  v.  'Woodward,  4  Halsted, 
115. 

-  Gassett  v.  Grout,  4  Metcalf,  486. 

[347] 


§  477  garnishee's   liability   for   property.       [cH.  XXL 

least  until  his  accounts  have  been  adjusted  by  the  pro- 
bate court,  and  a  balance  found  in  his  hands.^  But, 
where  a  garnishee  answered  that,  as  guardian  of  an 
infant,  he  sold  land  to  the  defendant,  under  a  license  of 
court,  but  that  he  did  not  give  the  bond  nor  take  the 
oath  required  by  law  j^i^evious  to  such  sale ;  that  part 
of  the  purchase-money  had  been  paid,  and  a  deed  had 
been  executed  and  placed  in  the  hands  of  a  third  per- 
son, to  be  delivered  when  the  residue  should  be  paid  j 
that  the  defendant,  soon  after  the  sale,  entered  and  was 
still  in  possession  of  the  land  ;  it  was  held,  that,  because 
there  was  neither  oath  nor  bond  of  the  guardian,  the 
sale  was  invalid,  and  the  purchaser,  who  was  the  de- 
fendant in  the  attachment,  had  a  right  of  action  against 
the  guardian  to  recover  back  what  he  had  paid  of  the 
purchase-money,  and,  therefore,  the  guardian  was  liable 
as  garnishee.^ 

§  477.  Sherifs.  The  same  considerations  which  for- 
bid the  garnishment  of  executors,  administrators,  and 
guardians,  require  that  all  ministerial  officers,  having 
official  possession  of  property  or  money,  should  be  ex- 
empt from  that  proceeding.  We  accordingly  find  that, 
almost  without  exception,  the  courts  in  England^  and 
this  country  have  taken  decided  ground  against  all 
attempts  to  reach,  by  garnishment,  money  in  the  hands 
of  sheriffs,  received  and  held  by  them  in  their  official 
capacity. 


1  Davis  V.  Drew,  6  New  Ifamp.  390. 
"-  Williams  v.  Reed,  5  Pick.  480. 

'  1  Leonard,  30,  2G4  ;  Priv.  Londini,  2G5  ;  Comyn's  Digest,  Attachment, 
D;  Bac.  Ab.,  Customs  of  London,  IL 

[  348  ] 


CH.  xxl]     gaenishee's  liability  for  property.         §  479 

§  478.  This  subject  has  been  presented  in  three  as- 
pects :  1.  By  the  levy  of  an  execution  by  an  officer  on 
money  in  his  hands  collected  on  execution  ;  2.  By  the 
levy  of  an  attachment  on  such  money ;  and  3.  By  the 
garnishment  of  the  sheriff  in  respect  thereof.  The  ob- 
ject aimed  at  in  each  of  these  cases  being  the  same,  the 
general  principles  governing  each  are  equally  applica- 
ble to  all,  and  cannot  be  affected  by  the  difference  in 
the  modes  of  attaining  the  same  result.  Whether  the 
proceeding  be  by  actual  levy  or  by  garnishment,  cannot 
change  the  aspect  of  the  question,  since  the  latter  is  in 
effect  as  much  an  attachment  as  the  former.  Hence, 
there  is  no  just  ground  for  the  distinction  which  has 
been  made  in  favor  of  allowing  the  money  to  be  reached 
by  garnishment  as  a  right  or  credit  in  the  sheriff's  hands, 
though  held  not  to  be  attachable  by  levy.  Obviously, 
if  its  abstraction  from  his  custody  by  levy  be  inadmissi- 
ble, the  law  will  not  tolerate  its  abstraction  by  a  cir- 
cuitous and  less  direct  method.  We  shall,  therefore,  in 
the  consideration  of  the  subject,  use  indiscriminately 
the  decisions  relating  to  the  three  modes  of  proceeding 
above  referred  to. 

§  479.  The  first  and  leading  case  in  this  country, 
bearing  on  this  subject,  was  decided  by  the  Supreme 
Court  of  the  United  States.  A  sheriff  having  collected 
money  on  an  execution,  levied  thereon  an  execution 
which  he  held  against  the  person  for  whom  the  money 
was  collected.  Two  questions  were  made  ;  first,  can  an 
execution  be  levied  on  money  ?  and,  second,  can  it  be 
levied  on  money  in  the  hands  of  the  officer?  The 
court  decided  the  former  affirmatively,  and  held  the 
following  language  in  reference  to  the  latter. 

30  [349] 


§  479  garnishee's    liability   for   property.       [cIL  XXI. 

"  The  general  rule  of  law  is,  tliat  all  chattels,  the 
property  of  the  debtor,  may  be  taken  in  execution,  and 
whenever  an  officer  has  it  In  his  power  to  satisfy  an 
execution  in  his  hands,  it  is  his  duty  to  do  so,  and  if  he 
omits  to  perform  his  duty  he  must  he  accountable  to 
those  who  may  be  injured  by  his  omission.  But  has 
money,  not  yet  paid  to  the  creditor,  become  his  prop- 
erty ?  That  k,  although  his  title  to  the  sum  levied 
may  be  complete,  has  he  the  actual  legal  ownership  of 
the  specific  pieces  of  coin  which  the  officer  may  have 
■  received  ?  On  principle  the  court  conceives  that  he 
jjas  not  this  ownership.  The  judgment  to  be  satisfied 
is  for  a  certain  sum,  not  for  the  specific  pieces  which 
constitute  that  sum,  and  the  claim  of  the  creditor  on 
the  sheriff  seems  to  be  of  the  same  nature  with  his 
claim  under  the  judgment,  and  one  which  may  be  satis- 
I'i'A  \n  tlje  same  manner.  No  right  would  exist  to  pur- 
sue the  specific  pieces  received  by  the  officer,  although 
they  should  even  have  an  ear-mark ;  and  an  action  of 
debt,  not  of  detinue,  may  be  brought  against  him  if  he 
fails  to  pay  over  the  sum  received,  or  converts  it  to  his 
own  use.  It  seems  to  the  court  that  a  right  to  specific 
pieces  of  money  can  only  be  acquired  by  obtaining  the 
legal  or  actual  possession  of  them,  and  imtil  this  is  done 
there  can  be  no  such  absolute  ownership  as  that  execu- 
tion may  be  levied  on  them.  A  right  to  a  sum  of 
money  in  the  hands  of  a  sheriff  can  no  more  be  seized 
than  a  right  to  a  sum  of  money  in  the  hands  of  any 
other  person,  and  however  wise  or  just  it  may  be  to 
give  such  a  remedy,  the  law  does  not  appear  yet  to 
have  given  it." 

The  court  then  comment  upon  some  English  cases 
which  had  been  cited,  and  thus  conclude  the  considera- 
[350] 


CH.  XXI.]     garnishee's  liability  foe  property.         §  481 

tion  of  this  branch  of  the  case:  "Considering  the  case 
then  either  on  principle  or  authoritj^,  it  appears  to  the 
court  that  the  creditor  has  not  such  a  legal  property  in 
the  specific  pieces  of  money  levied  for  him  and  in  the 
hands  of  the  sheriff,  as  to  authorize  that  officer  to  take 
those  pieces  in  execution  as  the  goods  and  chattels  of 
such  creditor."  ^ 

§  480.   The  same  conclusion  was  arrived  at  in  Ken- 
tucky in  a  case  where  the  facts  were  almost  identical.^ 

^  481.   In  Ohio,  the  same  question  arose,  in  conse- 
quence of  a  sheriff  levying  an  attachment  on  money  in 
his  hands  collected  under  execution.     There  the  court 
c^aid,  —  "  While  the  money  remains  in  the  hands  of  the 
officer,  it  is  in  the  custody  of  the  law.     It  does  not  be- 
come the  property  of  the  judgment  creditor  till  it  is 
paid  over,  and  consequently  it  is  not  liable  to  be  at- 
tached as  his.     The  writ  of  attachment  could  not  super- 
sede the  execution,  or  release  the  sheriff  from  a  literal 
compliance  with  its  command,  which  required  him  to 
brino-  the  money  into  court,  so  that  it  might  be  sub- 
ject "to  their  order."     And  further  — "a  strong  argu- 
ment mi-ht  also  be  drawn  from  the  mischievous  conse- 
quences ^that  would  follow  such  a  course  of  practice.- 
It  would  lead  to  endless  delay  and  vexation.     One  at- 
tachment might  follow  another,  till  the  whole  demand 
was  absorbed  in  cost."  '^ 


1  Turner  r.  Fcndall,  1  Cranch,  117. 

2  Firstr.  ]^Iiller,  4Bibb,  311. 

3  Dawson  v.  Holcoml^,  1  Ohio,  134.  See  also,  as  dlrectlr  m  point,  Pren- 
ti«  V.  Bliss,  4  Vermont,  513;  Du]x>is  v.  DuWis,  6  Cowen,  494 ;  Crane  r. 
Freese  1  Harrison,  305;  Eeddick  r.  Smith,  4  Uliaois  (3  Scammon)  4ol. 

[  3ol  J 


§  483  garnishee's   liability    for    rEOPERTY.       [CII.  XXI. 

§  482.  If,  therij  money  in  the  hands  of  a  sheriff  in 
his  official  capacity  cannot  be  levied  on  by  execution 
or  attachment,  can  it  be  reached  by  garnishment  ?  In 
Vermont  and  New  Jersey  the  courts  have  held  that 
though  the  levy  is  impracticable,  yet  the  garnishment 
may  be  maintained,  on  the  ground  that  the  money  is  a 
right  or  credit  of  the  defendant's  in  the  sheriff's  posses- 
sion,^ In  New  Hampshire,  the  doctrine  was  at  one 
time  incidentally  asserted,  that  the  sheriff  could  not  be 
garnished  hcfore  the  return  day  of  the  execution;^  but 
■afterwards  the  same  court  receded  from  this  view,  and 
sustained  such  a  garnishment.''^  With  all  due  respect,  we 
are  constrained  to  consider  these  decisions  unsupported 
by  correct  principles,  as  they  are  certainly  overborne 
by  the  weight  of  authority. 

§  483.  This  question  received  an  early  consideration 
and  decision  in  Massachusetts.*  A  sheriff  had  collected 
money  on  execution,  and  before  the  writ  was  returnable 
the  money  was  attached  in  his  hands,  by  garnishment, 
under  a  foreign  attachment  against  the  execution  cred- 
itor. The  court  were  unanimous  in  discharging  the 
garnishee.  Parker,  J.,  said,  —  "  when  an  officer  receives 
money  upon  an  execution,  the  law  prescribes  his  duty 
in  relation  to  it.  He  is  not  bound  to  pay  it  over  to  the 
creditor  until  the  return  day  of  the  execution.  From 
liis  receipt  of  it  until  that  day,  it  is  not  the  creditor's 
money,  but  is  in  the  custody  of  the  law."     Sewall,  J. 


^  Conant  v.  Bicknell,  1  D.  Cliipman,  50  ;  Hurlburt  v.  Hicks,  17  Vermont, 
193  ;  Crane  v.  Freese,  1  Harrison,  305. 
^  Adams  v.  Barrett,  2  New  Ilamp.  374. 
'  Woodb ridge  v.  Morse,  5  New  llamp.  519. 
*  Wilder  v.  Bailey,  3  Mass.  289. 

[352] 


cii.  XXI.]     garnishee's  liability  for  property.         §  483 

"  I  consider  the  statute  giving  this  process  of  foreign 
attachment  as  a  very  beneficial  one,  and  am  therefore 
for  applying  a  liberal  construction  to  it.  But  there 
must  be  bounds  to  this  liberality.  In  the  case  before 
us,  an  officer,  in  the  execution  of  a  precept  of  the  law, 
has  received  money,  for  which  he  is  accountable  to  a 
third  person.  An  attempt  is  made  to  interrupt  the  ex- 
ecution of  the  precept,  and  to  divert  the  money  from 
the  course  which  the  law  prescribed.  If  such  practice 
should  be  permitted,  great  inconvenience  and  mischief 
would  be  the  consequence."  Sedgwick,  J.,  after  arriving 
at  the  conclusion  that  the  money  was  neither  goods  nor 
effects  of  the  execution  plaintiff,  thus  proceeds :  "  Nei- 
ther can  this  money,  in  my  opinion,  be  considered  as  a 
credit  in  the  hands  of  the  officer.  There  cannot  be  a 
credit  without  a  creditor  and  debtor.  There  is  nothing 
in  the  reason  of  the  thing,  resulting  from  the  relation  of 
a  judgment  creditor  and  an  officer  who  has  collected 
money  for  him,  which  renders  the  one  a  creditor,  and 
the  other  a  debtor.  There  is  nothing  said  in  any  of 
the  books,  which  implies  that  that  relation  exists  be- 
tween them.  On  the  contrary,  money  so  collected  is 
in  the  custody  of  the  law,  and  the  sheriff  is  the  trustee 
for  its  safe  keeping.  I  confess  that  I  should  have  been 
extremely  sorry  to  have  found  that  the  attempt  to 
charge  the  officer  as  the  trustee  of  the  judgment  credi- 
tor could  have  been  supported.  If  it  could,  a  principle 
would  have  been  established,  that  an  execution,  which 
has  been  justly  called  finis  et  f nidus  of  legal  pursuits, 
might  be  eternally  defeated.  A  judgment  debtor  would 
have  had  nothing  more  to  do,  when  he  had  paid  the 
money,  than  to  engage  a  friend,  who  had,  or  who  would 
pretend  that  he  had,  a  demand  against  the  creditor,  and 
30--=--  [353] 


§  485  garnishee's   liability   for   property.       [cH.  XXI. 

fix  the  money  in  the  hands  of  the  officer,  as  long  as 
there  could  be  any  pretence  of  keeping  alive  the  suit ; 
and  when  that  could  no  longer  be  done,  a  new  action 
might  be  instituted,  and  the  same  consequences  ensue, 
and  so  on,  ad  infinitum.  This  might  be  done  indepen- 
dently by  the  debtor,  merely  to  gratify  revenge  ;  it 
might  be  done  by  collusion  between  the  officer  and  the 
debtor ;  or  it  might  be  done  even  by  the  officer  alone, 
to  secure  to  himself  the  use  of  the  money,  which,  from 
its  amount,  might  vastly  overbalance  the  trifling  ex- 
penses which  he  would  incur."  Parsons,  C.  J.,  concurred 
with  his  associates  upon  substantially  the  same  grounds 
taken  by  them. 

§  484.  This  case,  it  will  be  remarked,  presented  the 
question  of  garnishment  of  a  sheriff  before  the  return 
day  of  the  execution.  In  a  subsequent  case,  where  the 
garnishment  took  place  after  the  return  of  the  execu- 
tion, the  same  court  affirmed  and  applied  its  previous 
decision.^ 

§  485.  The  latest  expression  of  the  views  of  the  Su- 
preme Court  of  Massachusetts  on  this  subject,  was  in  a 
case  where  an  officer  charged  with  the  service  of  crimi- 
nal process  against  a  person,  arrested  him,  and,  as  inci- 
dental to  the  service  of  the  process,  took  from  him 
money  and  property  found  in  his  possession.  The  next 
day,  being  satisfied  that  the  prisoner  had  committed  no 
crime,  he  went  to  the  jail  to  return  the  money  and 
property  to  him,  and  when  about  entering  the  jail  he 
was  summoned  as  garnishee  of  the  prisoner.    The  ques- 

^  Pollard  V.  Ross,  5  Mass.  310. 

[354] 


CH.  XXI.]     garnishee's  liability  for  property.        §  487 

tion  j^resented  by  this  proceeding  was  whether  the  offi- 
cer was  exempt  from  garnishment,  under  that  chxuse  of 
the  statute  which  declared  that  no  person  should  be 
adjudged  a  trustee  "  by  reason  of  any  money  in  his 
hands  as  a  public  officer,  and  for  which  he  is  accounta- 
ble, merely  as  such  officer,  to  the  principal  defendant." 
The  court  held  that  the  money  was  taken  by  the  officer 
in  the  performance  of  his  official  duty,  and  that,  there- 
fore, he  could  not  be  charged  m  respect  thereof^ 

§  486.  The  doctrine  settled  in  Massachusetts,  has 
been  also  established  in  Maryland,^  North  Carolina,^ 
South  Carolina,^  Alabama,^  Tennessee,*^  and  Missouri,' 
and  incidentally  recognized  in  Maine.^  Viewed  either 
as  sustained  by  authority,  or  as  resting  on  the  broader 
and  surer  basis  of  sound  principle,  it  may  properly  be 
considered  as  settled. 

§  487.  If  money  collected  cannot  be  so  reached,  it 
follows,  a  fortiori,  that  a  sheriff  cannot  be  charged  as 
garnishee  in  respect  of  an  execution  in  his  hands  upon 
which  the  money  has  not  been  collected.^ 


^  Kobinson  r.  Howard,  7  Cusbing,  257. 

-  Farmers  Bank  v.  Beaston,  7  Gill  &  Jolmson,  421 ;  Jones  v.  Jones,  1 
Bland,  443. 

^  Overton  v.  Hill,  1  iMurphey,  47. 

*  Blair  V.  Cautey,   2   Speers,  34;  Burrell  v.  Letson,  Ibid.   378;  s.  C.   1 
Strobhart,  239. 

"  Zurcher  v.  Magee,  2  Alabama,  253. 

"  Pawlcy  V.  Gains,  1  Tennessee,  208  ;  Dranc  r.  McGavock,  7  Humphreys, 
132. 

^  Marvin  v.  Hajvley,  9  Missouri,  378. 

*  Staples  V.  Staples,  4  Maine,  532. 
"  Sharp  V.  Clark,  2  Mass.  91. 

[355] 


§  489  garnishee's   liability   for   property.       [cII.  XXI. 

§  488.  But  thougli  a  sheriff  holding  money  received 
in  payment  of  an- execution,  and  which  ought  to  be 
paid  to  the  execution  creditor,  cannot,  in  respect 
thereof,  be  garnished,  yet  there  are  other  circumstances 
in  v/hich  his  official  character  affords  him  no  protection 
from  garnishment.  In  all  the  cases  considered,  it  was 
held  that  the  money  was  in  the  sheriff's  hands  virtute 
officii,  and  therefore  in  the  custody  of  the  law.  But 
where  money  in  his  hands  has  ceased  to  be  in  such  a 
position  as  to  claim  the  protection  of  the  law,  he  will 
be  subject  to  garnishment  as  any  other  person  would 
be.  Therefore,  where  a  sheriff  holding  an  execution 
sells  property,  and,  after  satisfying  the  execution,  there 
is  a  surplus  in  his  hands,  it  is  considered  to  belono-  to 
the  defendant,  and  to  be  held  by  the  sheriff  in  his 
private,  and  not  in  his  official,  capacity,  and  may,  there- 
fore, be  reached  by  the  defendant's  creditors,  either  by 
direct  attachment  or  by  garnishment.^ 

§  489.  5.  ClcrJcs  of  Courts.  The  same  principles 
which  we  have  seen  applied  to  administrators,  execu- 
tors, guardians,  and  sheriffs,  are  applicable  to  clerks  of 
courts,  who  frequently  have  money  of  others  in  their 
possession  officially.  It  has  been  decided  in  Pennsj-l- 
vania  and  North  Carolina,  that  money  paid  into  the 
hands  of  a  clerk  on  a  judgment;^  and  in  the  latter 
State  and  Tennessee,  that  money  in  the  possession  of  a 


1  Watson  V.  Todd,  5  ]\Ia.ss.  271  ;  Orr  v.  McBryde,  2  Carolina  Law  Repos- 
itory, 257  !  King  v.  Moore,  6  Alabama,  160;  Tucker  v.  Atkinson,  1  Hum- 
phreys, 300;  Davidson  v.  Clayland,  1  Harris  &  Johnson,  54G;  Jaquctt's 
Adm'r  v.  Palmer,  2  Harrington,  144;  Wheeler  v.  Smith,  11  Barbour,  Sup. 
Ct.  345. 

-  Ross  I'.  Clarke,  1  Dallas,  354;  Alston  v.  Clay,  2  Haywood,  N.  C.  171. 
[356] 


CH.  XXI.]       garnishee's    liability    for    TROrERTY.  §  ^^0 

clerk  in  any  manner  in  virtue  of  his  office ;  ^  and  in 
Maryland,  that  money  paid  into  court/  cannot  be  at- 
tached. In  Georgia,  this  rule  was  applied  to  the  case 
of  a  receiver  appointed  by  a  court  of  chancery ;  who 
was  held  exempt  from  garnishment  in  resjDect  of  moneys 
in  his  hands  as  such,  even  after  the  suit  in  which  he 
was  appointed  was  terminated ;  for  he  was  accountable 
to  the  court,  and  the  money  was,  therefore,  in  custodia 
Icgu?  But  where  the  register  of  a  court  of  chancery 
held  a  surplus  of  money  belonging  to  a  defendant,  after 
a  sale  of  property  to  satisfy  a  mortgage  decree,  he  was 
charged  as  garnishee  of  the  defendant  in  respect  of  such 
surplus,  although  the  sale  had  not  been  confirmed,  and 
he  was  directed  by  the  decree  to  report  his  doings  at 
the  next  term  of  the  court.'^ 

§  490.  6.  Justices  of  the  Peace.  In  some  States  it  is 
the  practice  for  money  collected  by  a  constable  on  an 
execution  issued  by  a  justice  of  the  peace,  to  be  paid 
into  the  hands  of  the  justice.  It  would  seem  to  follow 
from  the  numerous  decisions  previously  considered,  that 
such  an  officer  could  not  be  garnished  in  respect  of 
money  so  received,  and  in  Pennsylvania  it  has  been  so 
held.^  But  in  Alabama,  it  was  decided  otherwise,  on 
the  ground  (peculiar  to  their  system  of  laws),  that  the 
justice  is  not  merely  a  judicial  officer  in  relation  to  the 


^  Hunt  V.  Stevens,  3  Iredell,  3G5 ;  Drane  v.  McGavock,  7  Humphreys, 
132. 

^  Farmers  Bank  v.  Beaston,  7  Gill  &  Johnson,  421.  See  Murrell  v.  John- 
son, 3  Hill,  S.  C.  12. 

^  Field  V.  Jones,  11  Georgia,  413.     And  see  Glenn  v.  Gill,  2  Maryland,  1. 

*  Langdon  v.  Lockett,  6  Alabama,  727. 

*  Corbyn  v.  Bollman,  4  "Watts  &  Sergeant,  342. 

[357] 


§492  garnishee's    liability   for   property.       [cII.  XXI. 

collection  of  small  debts,  but  the  agent  of  the  person 
who  intrusts  their  collection  with  him ;  and  that  as  soon 
as  the  money  is  collected  his  character  as  a  magistrate 
ceases,  and  he  holds  it  as  any  other  agent.-"^ 

§  491.  7.  Trustees  of  Insolvents,  and  Assignees  in  BanJc- 
ruptcij.  In  Massachusetts,  it  has  been  decided  that  ef- 
fects of  a  bankrupt  in  the  hands  of  the  assignee,  cannot 
be  reached  by  garnishment,  as  they  are  not  the  effects 
of  the  bankrupt,  but  are  by  law  vested  in  the  assignee.^ 
Upon  the  same  ground,  and  also  because  the  attachment, 
under  such  circumstances,  of  the  effects  of  a  bankrupt 
or  insolvent,  would  utterly  defeat  the  whole  policy  of 
the  bankrupt  or  insolvent  laws,  the  same  decision  has 
been  made  in  Maryland,  with  regard  to  assignees  in 
bankruptcy  and  trustees  of  insolvent  debtors.^ 

§  492.  In  the  former  State,  however,  this  exemption 
of  assignees  in  bankruptcy  was  at  one  time  held  to  ex- 
tend only  to  cases  where  it  was  sought  to  reach  the 
bankrupt's  effects  to  subject  them  to  the  payment  of 
his  debts.  Therefore,  where  an  assignee  was  garnished, 
in  an  action  against  a  creditor  of  the  bankrupt,  to  whom 
a  dividend  of  the  bankrupt's  estate  was  due,  he  was 
charged  as  garnishee.^  It  does  not,  however,  appear 
that  the  question  was  raised  whether  an  officer  of  this 
kind  was  exempted  by  his  official  character  from  the 
operation  of  this  process.  But  recently  the  Supreme 
Court  of  that  State  overruled  the  cases  just  cited,  and 

1  Clark  V.  Boggs,  6  Alabama,  809. 

2  Oliver  v.  Smith,  5  Mass.  183. 

*  Farmers  Bank  v.  Beaston,  7  Gill  and  Johnson,  421. 

*  Jones  V.  Goi-ham,  2  Mass.  375 ;  Decoster  v.  Livermore,  4  Ibid.  101. 

[358] 


CH.  XXI.]     gakxisiiee's  liability  for  property.         §  494 

held  that  an  assignee  under  the  insolvent  law,  having 
money  in  his  hands,  payable  to  the  defendant  as  a  cred- 
itor of  the  insolvent,  could  not  be  charged  as  garnishee 
in  respect  thereof.^ 

§  493.  8.  Dishirsing  Officers.  We  have  already  seen 
that  a  county  treasurer  could  not  be  charged  as  gar- 
nishee, in  respect  of  a  sum  of  money  due  to  the  defend- 
ant from  the  county,  and  which  it  was  the  treasurer's 
duty  to  pay.^ 

A  simiLar  case  arose  in  Kentucky,  where  an  attempt 
was  made  to  reach  a  sum  of  money  allowed  by  the  leg- 
islature to  an  individual,  by  garnishing  the  auditor  and 
treasurer  of  the  State ;  but  it  was  held  that  the  pro- 
ceedino;  could  not  be  maintained.^ 

§  494.  The  Supreme  Court  of  the  United  States,  set- 
tled the  same  rule  with  regard  to  all  governmental  dis- 
bursing officers.  The  U.  S.  Frigate  Constitution  re- 
turned from  a  cruise,  and  several  writs  of  attachment 
Avere  issued  by  a  justice  of  the  peace,  against  seamen  of 
the  frigate,  under  which  the  purser  of  the  ship  was  gar- 
nished. The  purser  admitted  before  the  justice  having 
money  in  his  hands  due  to  the  defendants,  but  con- 
tended he  was  not  amenable  to  the  process.  Judgment 
was,  however,  given  against  him,  and,  on  appeal  to  the 
Superior  Court  of  the  county,  was  affirmed.  The  cases 
went  thence  to  the  Supreme  Court  of  the  United  States, 


^  Colby  V.  Coates,  6  Gushing,  558. 

-  Chealy  v.  Brewer,  7  Mass.  259 ;  Bulklcy  v.  Eckert,  3  Penn.  State,  3G8. 

3  Divine  v.  Harvie,  7  Monroe,  439.     See  Spalding  v.  Imlay,  1  Root,  551. 

[  359  ] 


§  495  garnishee's    liability   for    property.       [cII.  XXI. 

which  tribunal  reversed  the  judgmetn,  and  in  doing  so 
held  th6  following  language  :  — 

"  The  important  question  is,  whether  the  money  in 
the  hands  of  the  purser,  though  due  to  the  seamen  for 
wages,  was  attachable.  A  purser,  it  would  seem,  can- 
not, in  this  respect,  be  distinguished  from  any  other 
disbursing  agent  of  the  government.  If  the  creditors  of 
these  seamen  mny,  by  process  of  attachment,  divert  the 
public  money  from  its  legitimate  and  appropriate  object, 
the  same  thing  may  be  done  as  regards  the  pay  of  our 
officers  and  men  of  the  army  and  of  the  navy ;  and  also 
in  every  other  case  where  the  public  funds  may  be 
placed  in  the  hands  of  an  agent  for  disbursement.  To 
state  such  a  principle  is  to  refute  it.  No  government 
can  sanction  it.  At  all  times  it  would  be  found  embar- 
rassing, and  under  some  circumstances  it  might  prove 
fatal  to  the  public  service. 

"  The  funds  of  the  government  are  specifically  appro- 
priated to  certain  national  objects,  and  if  such  appropri- 
ations may  be  diverted  and  defeated  by  state  process 
or  otherwise,  the  functions  of  the  government  may  be 
suspended.  So  long  as  money  remains  in  the  hands  of 
a  disbursing  officer,  it  is  as  much  the  money  of  the  Uni- 
ted States,  as  if  it  had  not  been  drawn  from  the  trea- 
sury. Until  paid  over  by  the  agent  of  the  government 
to  the  person  entitled  to  it,  the  fund  cannot,  in  any 
legal  sense,  be  considered  a  part  of  his  effects.  The 
purser  is  not  the  debtor  of  the  seamen. 


"  1 


§495.    But,  where  the  garnishee,  though  acting  un- 


1  Uncliaiian  r.  Alexander,  4   Howard,  U.  S.  S.  C,  20.     See  Averill  v. 
Tucker,  2  Crancli,  C.  C.  344. 

[360] 


CH.  XXI.]     garnishee's  liability  for  property.         §  497 

der  public  authority,  is  not  a  public  officer,  but  merely 
an  agent  for  a  particular  purpose,  a  distinction  has  been 
made.  Thus,  where  a  town  in  New  Hampshire,  (in 
pursuance  of  a  law  authorizing  the  several  towns  to 
make  a  disposition  of  the  public  money  deposited  with 
them,  in  such  manner  as  each  town  should  by  a  major 
vote  determine,)  voted  to  distribute  it  "  to  the  inhabi- 
tants of  the  town  ^:?£'r  capita^'  according  to  a  census  to  be 
taken,  and  appointed  an  agent  to  make  the  distribution; 
it  was  held  that  the  agent  could  be  charged  as  gar- 
nishee of  one  of  the  inhabitants  in  respect  of  his  distrib- 
utive share.^ 

§  496.  9.  Atiomeys  at  Law.  It  seems  to  be  generally 
conceded  that  persons  practising  as  attorneys  at  law, 
and  holding  money  of  their  clients,  are  not  protected 
by  their  legal  capacity  from  garnishment,  but  are  con- 
sidered liable  in  respect  of  money  so  held  by  them, 
even  though  their  clients  could  maintain  no  action 
against  them  for  the  money  until  the  payment  of  it 
should  have  been  demanded.^ 

§497.  1^.  3funicipal  Corporations.  These  bodies  have 
not  escaped  the  eiforts  of  creditors  to  reach  the  moneys 
of  debtors;  but  the  principles  we  have  adverted  to, 
have  been  considered  as  applicable  to  them  as  to  per- 
sons holding  effects  of  defendants  in  legal  capacities. 
Therefore,  it  has  been  held  that  a  municipal  corpora- 

1  TVendell  v.  Pierce,  13  New  Hamp.  502. 

^  Staples  V.  Staples,  4  Maine,  532;  Woodbridge  v.  Morse,  5  Xew  Hamp. 
519;  Coburn  v.  Ansart,  3  Mass.  319;  Thayer  v.  Sherman,  12  Ibid.  441; 
Riley  v.  Hirst,  2  Penn.  State,  346  ;  Mann  v.  Buford,  3  Alabama,  312  ;  Tucker 
V.  Butts,  6  Georgia,  580. 

31  [ 361  ] 


§  497  GAKNISHEE'S    liability   for   property.      [cH.  XXI. 

tion  cannot  be  charged  as  garnishee  in  respect  of  money 
due  as  salary  to  one  of  its  officers.^  Much  less  can  a 
sovereign  State ;  though  its  constitution  required  the 
legislature  to  direct  by  law  in  what  courts  and  in  what 
manner  suits  might  be  commenced  against  the  State, 
and  the  legislature  had  passed  laws  to  that  effect.^ 

^  Hawthorn  v.  City  of  St.  Louis,  11  Missouri,  59.     And  see  Bradley  v. 
Richmond,  6  Vermont,  121 ;  Ward  v.  County  of  Hartford,  12  Conn.  404. 
2  McMeekin  v.  The  State,  4  English,  553. 

[362] 


CHAPTER   XXII. 

THE    garnishee's    LIABILITY,    AS    AFFECTED    BY    PREVIOUS    COX- 
TRACTS   TOUCHING   THE  DEFENDANT'S  PROPERTY  IN  HIS  HANDS. 

§  498.  The  liability  of  a  garnishee  in  respect  of  prop- 
erty of  a  defendant  in  his  hands,  is  to  be  determined 
ordinarily  by  his  accountability  to  the  defendant  on  ac- 
count of  the  property.  If  by  any  preexisting  hond  fide 
contract  that  accountability  have  been  removed,  or 
modified,  it  follows  that  the  garnishee's  liabihty  is  cor- 
respondingly affected.  For  it  is  well  settled  that  gar- 
nishment cannot  have  the  effect  of  changing  the  nature 
of  a  contract  between  the  garnishee  and  the  defendant, 
or  of  preventing  the  garnishee  from  performing  a  con- 
tract with  a  third  person.  Any  other  doctrine  would 
lead  to  mischievous  results. 

§  499.  Therefore,  where  goods  were  shipped  by  the 
defendant  to  the  garnishee,  and  a  bill  of  exchange 
drawn  on  the  garnishee,  which,  before  the  goods  were 
received,  was  presented,  and  he  refused  to  accept  it, 
and  it  was  returned  to  the  drawers,  and  soon  afterwards 
the  goods  arrived,  and  the  garnishee  called  on  the  per- 
sons who  had  presented  the  bill  to  him,  and  told  them 
if  they  would  get  the  bill  back  he  would  pay  it,  and 
after  this  promise  he  was  summoned  as  garnishee  of  the 
shippers  of  the  goods,  and  in  his  answer  admitted  the 

[3G3] 

% 


§  501  garnishee's    LLIBILITY   FOR   PROPERTY.     [CH.  XXII. 

possession  of  the  defendant's  goods,  but  set  up  his  prom- 
ise to  pay  the  bill;  it  was  held  that  the  promise  was 
binding  on  him  and  gave  him  a  lien  on  the  goods,  in 
virtue  of  which  he  was  entitled  to  retain  the  goods  for 
his  indemnity.-^ 

§  500.  So,  where  the  garnishee  had  goods  of  the  de- 
fendant in  his  hands  on  consignment,  and,  at  the 
defendant's  request,  agreed  to  pay  to  a  third  person  the 
amount  of  a  bill  of  exchange  of  the  defendant  which 
had  been  protested,  and  which  that  third  person  had  ac- 
cepted for  the  honor  of  one  of  the  indorsers  thereon, 
and  after  making  this  agreement  he  was  garnished ;  it 
was  held  that  his  agreement  was  binding  on  him,  and 
that  he  was  entitled  to  retain  out  of  the  proceeds  of  the 
goods  the  amount  of  the  bill  which  he  had  undertaken 
to  pay.^ 

§  501.  So  where  A.  delivered  goods  to  B.,  with  direc- 
tions to  sell  the  same  on  his  arrival  in  New  Orleans, 
and  pay  the  proceeds  to  C.  D.  and  E.,  to  extinguish,  as 
far  as  they  would  go,  a  debt  he  owed  them.  On  his 
arrival  in  New  Orleans,  B.  placed  the  goods  in  the 
hands  of  C.  D.  and  E.,  to  sell,  informing  them  of  A.'s 
directions,  and  that  in  conformity  thereto,  he  would 
pay  over  the  proceeds  to  them ;  to  which  they  assented. 
Before  the  goods  were  sold  they  were  attached  by  a 
third  party  as  the  property  of  A. ;  and  it  was  held  that 
they  were  not  subject  to  such  attachment,  because  the 
promise  of  B.  to  C.  D.  and  E.,  bound  him  to  pay  the 

^  Grant  v.  Shaw,  16  Mass.  341. 
*  Curtis  V.  Norris,  8  Pick.  280. 

[364] 


CH.  XXII.]    garnishee's  liability  for  property.        §  504 

proceeds  to  them,  and  A.  could  not,  by  a  change  of  his 
determination,  have  compelled  him  to  pay  the  money 
to  any  other  person.^ 

§  502.  So,  where  one  summoned  as  garnishee  had, 
before  the  garnishment,  in  a  transaction  ^vith  the  de- 
fendant, purchased  from  him  goods,  under  an  agree- 
ment, that,  in  consideration  of  the  sale  of  the  goods 
to  him,  he  would  pay  off  a  mortgage  on  land  which 
the  defendant  had  previously  executed,  which  was  paid 
after  the  garnishment,  it  was  held  that  as  the  defend- 
ant could  not  lawfully,  by  any  interference,  prevent 
the  garnishee  from  taking  up  the  mortgage,  so  neither 
could  the  plaintiff  by  the  operation  of  the  attach- 
ment.^ 

§  503.  So  where  one  summoned  as  garnishee  had 
received  for  the  defendant  an  order  on  a  town  treasury 
for  a  certain  sum,  having  previous  to  its  receipt  agreed 
with  the  defendant  and  a  third  person  to  whom  the  de- 
fendant was  indebted  to  deliver  the  order,  when  re- 
ceived, to  that  third  person,  and  immediately  after 
receiving  the  order  he  was  garnished ;  the  court  held 
that  he  was  bound  to  deliver  it  according  to  his  prom- 
ise, and  that  the  garnishment  did  not  relieve  him  from 
his  obligation.^ 

§  504.   So,  where  a  garnishee  disclosed  that  certain 


1  Armor  v.  Cockburn,  4  Martin,  New  Ser.  GG7.     Sec  Oliver  v.  Lake,  3 
Louisiana  Annual,  78. 
"  Owen  V.  Estes,  5  Mass.  330. 
»  Mayhew  v.  Scott,  10  Pick.  54. 

31*  [365] 


§  504  garnishee's    liability   for   property.     [cH.  XXII. 

creditors  of  the  defendants  having  attached  their  prop- 
erty, it  was,  after  the  attachment,  in  pursuance  of  a 
written  agreement,  signed  by  the  plaintiffs,  the  defend- 
ants, and  the  garnishee,  put  into  his  hands  to  sell,  and 
apply  the  proceeds  to  the  satisfaction  of  the  executions 
that  might  be  recovered,  in  the  order  of  the  attach- 
ments ;  and  after  the  agreement  was  made,  but  before 
the  property  came  into  his  hands,  he  was  garnished ; 
and  after  the  garnishment  he  received  the  property 
and  disposed  of  it  according  to  the  agreement :  it  was 
held  that  the  garnishee  was  not  liable,  the  court  con- 
sidering that  the  garnishment  "  did  not  relieve  him  of 
his  obligation  to  perform  the  contract  into  which  he 
had  entered.  He  received  property  of  the  defendants, 
it  is  true,  but  it  was  upon  the  express  trust  to  dispose 
of  it  and  discharge  the  liens  upon  it.  He  was,  there- 
fore, the  agent  of  the  creditors,  to  sell  the  property  and 
account  for  the  proceeds  to  them,  with  the  assent  of  the 
defendants."  ^ 


^  Collins  V.  Brigliara,  11  New  Hamp.  420. 

[366] 


CHAPTER    XXIII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  A  PREVIOUS  AS- 
SIGNMENT OF  THE  defendant's  PROPERTY  IN  HIS  HANDS,  OR 
BY   ITS    BEING    SUBJECT   TO    A   LIEN,    MORTGAGE,    OR   PLEDGE. 

§  505.  A  VERY  common  result  of  garnishment  is,  to 
bring  the  attachment  in  conflict  with  previous  transfers 
of  the  defendant's  property  found  in  the  hands  of  the 
garnishee,  or  with  existing  liens  upon  it.  Hence  have 
arisen  numerous  decisions  concerning  the  effect  of  gar- 
nishment in  such  cases.  This  branch  of  the  subject 
will  be  considered  in  reference  to  the  following  heads  : 
I.  Assignments,  legal  and  equitable :  II.  Liens :  HI. 
Mortgages  and  Pledges. 

§  506.  I.  Assignments,  legal  and  eqidtahle.  Where  a 
garnishee  holds  property  which  once  belonged  to  the 
defendant,  but  which,  before  the  garnishment,  was,  for 
a  valuable  consideration,  sold  to  the  garnishee,  the  at- 
tachment, of  course,  cannot  reach  it.  It  is  no  longer 
the  property  of  the  defendant,  but  of  the  garnishee. 
But  wherever  the  garnishee  sets  up  title  in  himself  to 
the  property  in  his  hands,  it  is  entirely  competent  for 
the  plaintiff  to  impeach  that  title,  on  account  of  fraud, 
or  other  invalidating  circumstance,  and  thereby  show 
that  the  property  is  still  liable  for  the  defendant's  debts. 

[367] 


§  507  garnishee's    liability    for    property.   [cH.  XXIII. 

And  it  is  held  in  Louisiana,  that  he  may  call  upon  the 
assignee  to  prove  the  consideration  of  the  assignment. 
"  The  attaching  creditor,"  observed  the  Supreme  Court 
of  that  State,  "  cannot  be  deprived  of  his  lien  and  the 
right  resulting  from  it,  unless  by  a  person  who  has  pre- 
viously acquired  the  property  of  the  thing  attached ; 
and  if  the  validity  of  the  consideration  be  a  necessary 
ingredient  in  the  right  of  the  assignee,  the  proof  must 
come  from  him  who  alleges  the  assignment ;  for  his 
opponents  cannot  prove  a  negative.  It  is  clear  of  any 
doubt,  that  it  is  a  bond  fide  assignment  alone  which  can 
be  successfully  opposed  to  the  attaching  creditor ;  and 
if  proof  of  the  validity  of  the  consideration  could  not 
be  demanded,  this  would  be  tantamount  to  a  declara- 
tion that  a  fraudulent  or  ■  collusive  assignment  might 
have  that  effect."  ^ 

§  507.  Where  the  firm  of  A.  &  Co.,  being  insolvent, 
placed  a  number  of  demands  in  their  favor  in  the  hands 
of  B.,  for  collection,  in  order  that  he  might  take  charge 
of  the  proceeds  and  keep  them  out  of  the  reach  of  at- 
tachment, and  pay  a  dividend  out  of  them  to  such  of 
A.  &  Co.'s  creditors  as  were  willing  to  discharge  them ; 
and  B.  accepted  an  order  drawn  by  A.  &  Co.,  requesting 
him  to  pay  the  money  Avhich  he  might  collect,  to  the 
order  of  C,  one  of  the  firm ;  and  B.,  having  collected  a 
part  of  the  money  lent  it  to  different  persons ;  and  was 
afterward  summoned  as  garnishee  of  A.  &  Co.,  at  a  time 
when  he  had  nothino;  in  his  hands  but  some  of  the  de- 
mands  left  with  him  for  collection,  and  the  notes  which 
he  had  taken ;  and  after  the  garnishment,  in  conformity 

^  Maher  v.  Brown,  2  Louisiana,  492. 

[368] 


CH.  XXIII.]    CxARXISIIEE's    liability    for    rROPERTY.  §  508 

•\vitli  verbal  orders  from  C,  he  paid  a  dividend  to  such 
of  the  creditors  of  A.  &  Co.  as  were  willing  to  give  a  dis- 
charge ;  it  was  held,  that  this  was  an  invalid  transfer  of 
property,  for  a  purpose  not  recognized  by  law,  and  void 
against  creditors ;  that  the  order  of  A.  &  Co.  to  pay  the 
proceeds  of  the  demands  to  C,  was  the  same  as  if  it  had 
been  drawn  in  favor  of  A.  &  Co. ;  and  that  the  fiict  that 
the  proceeds  had  been  lent  out  and  notes  taken  there- 
for, made  no  difference  as  to  the  liability  of  B.,  as  gar- 
nishee of  A.  &  Co.,  who  became  liable  for  the  money  re- 
ceived by  him  immediately  upon  its  receipt,  and  could 
not  avoid  that  liability  by  lending  the  money  out ;  and 
therefore  he  was  charged  as  garnishee  of  A.  &  Co.^ 

§  508.  So,  where  A.  was  indebted  to  B.,  and  B.  pro- 
cured C,  for  an  agreed  premium,  to  guaranty  the  debt ; 
and  afterwards  A.  failed,  and,  at  the  suggestion  of  B., 
but  without  any  knowledge  of  the  previous  guaranty, 
made  an  absolute  transfer  of  property  to  C,  to  secure 
the  debt  to  B.,  and  after  such  transfer  C.  was  garnished ; 
the  court  held  that,  —  "  the  convej-ance  instead  of  being 
made  for  the  benefit  of  C,  was  evidently  intended  for 
the  security  of  B.  It  was  manifest  that  A.,  at  the  time 
of  the  transfer  had  no  knowledge  that  C.  had  guarantied 
the  payment ;  and  between  them  therefore  there  was 
no  privity,  and  no  contract  created  by  that  guaranty. 
Had  C.  been  called  upon  for  the  amount  of  the  note,  by 
reason  of  his  separate  stipulation,  the  payment  of  that 
amount  would  not,  of  itself,  have  given  him  a  right  of 
action  aa;ainst  A.  It  was  a  distinct  matter,  collateral  to 
the   note  J    between   other  parties,  and  upon  another 


'  Hooper  V.  Hills,  9  Pick.  435. 

[369] 


§  510  garnishee's    liability   for   property.    [cH.  XXIII. 

consideration.  There  being  therefore  no  consideration 
moving  from  C,  for  the  conveyance  of  the  property  in 
question,  he  holds  it  as  the  trustee  of  A.,  and  must  be 
charged  as  such  in  this  action.^ 

§  509.  So,  where  a  surety  received  from  his  principal 
property  to  secure  him  against  his  liabilities,  and  the 
principal  afterwards  made  a  settlement  with  the  surety, 
in  which  he  transferred  to  the  surety  his  whole  interest 
in  the  property  for  a  grossly  inadequate  consideration, 
the  settlement  was  held  to  be  fraudulent  against  the 
creditors  of  the  principal,  and  the  surety  w^as  held  as 
garnishee  of  the  principal,  in .  resjoect  of  the  property 
received  by  him.^  But  in  this  case,  as  well  as  another 
in  Massachusetts,^  and  one  in  New  Hampshire,^  where 
property  was  found  in  the  garnishee's  hands,  under  a 
contract  that  was  fraudulent  as  to  creditors,  but  the 
garnishee,  before  he  was  summoned,  had,  hond  fide,  paid 
debts  of  the  defendant  to  an  amount  equal  to  the  value 
of  the  property  in  his  hands,  he  was  held  not  liable  in 
respect  of  the  property. 

§  510.  An  equitable  assignment  will  secure  the  prop- 
erty against  attachment  for  the  debt  of  the  assignor, 
though  no  notice  be  given  to  the  person  holding  the 
property,  prior  to  the  attachment,  if  it  be  given  in  time 
to  enable  him  to  bring  it  to  the  attention  of  the  court 
before  judgment  is  rendered  against  him  as  garnishee. 
Thus,  A.  being  indebted  to  B.,  assigned  to  him  a  policy 

^  Knight  V.  Gorham,  4  Maine,  492. 

■  Ripley  V.  Severance,  6  Pick.  4  74. 

^  Thomas  i-.  Goodwin,  12  Mass.  140. 

*  Ilutchins  V.  Sprague,  4  New  Hamp.  4G9. 

[370] 


CH.  xxm.]  garnishee's  liability  for  property.         §  512 

of  insurance  on  goods  at  sea,  which  were  afterwards  lost. 
A  creditor  of  A.  garnished  one  of  the  underwriters,  who 
had  no  knowledge  of  the  assignment  of  the  polic}^;  and 
the  question  was  whether  the  assignment,  without  no- 
tice to  the  underwriters,  was  good,  so  far  as  to  vest  a 
property  in  the  assignee,  and  thus  preclude  an  attach- 
ment :  and  the  court  were  unanimous  in  holdino;  that 
the  assignment,  though  made  without  the  knowledge 
or  assent  of  the  underwriter,  vested  an  equitable  right 
in  the  assignee ;  and  the  garnishee  was  discharged.^ 

§  511.  Much  more  will  an  assignment  be  effectual, 
where  notice  of  it  has  been  given  to  the  garnishee  be- 
fore the  attachment.  Thus,  where  the  garnishees  dis- 
closed that  they  had  collected  money  for  the  defend- 
ant, but  before  its  receipt  and  before  the  garnishment, 
they  had  accepted  an  order  drawn  on  them  by  the  de- 
fendant in  favor  of  a  third  person,  for  whatever  sum 
they  might  collect;  the  order  was  held  to  be  an  assign- 
ment of  the  money,  and  the  garnishees  were  discharged.^ 

§  512.  So,  where  the  Bank  of  the  United  States  was 
garnished  in  respect  of  certain  shares  of  its  stock,  stand- 
in  o-  in  the  name  of  the  defendants  on  its  books,  but 
which,  it  appeared  in  evidence,  had  been  sold  and  trans- 
ferred by  the  defendants  in  England,  by  delivery  of  the 
certificate,  with  a  power  of  attorney  authorizing  the 
transfer  of  the  stock  on  the  books  of  the  bank,  before 
the  garnishment,  though  the  stock  was  not  transferred 
until  afterwards;  the  court  held  that  the   stock  was 


1  Wakefield  v.  Martin,  3  Mass.  558. 

^  Legro  V.  Staples,  16  Maine,  252;  Adams  v.  Robinson,  1  Pick.  4G1  ;  Nes- 
mitli  r.  Drum,  8  Watts  &  Serg.  9 ;  Brazier  v.  Chappell,  2  Brevard,  107. 

[371] 


§  512  garnishee's    liability   for    property.    [cH.  XXIII. 

equitably  transferred  before  the  garnishment,  and  in 
giving  their  opinion  used  the  following  language:  "It 
cannot  be  denied,  that  a  mere  chose  in  action  equitably 
assigned,  is  not  subject  to  the  operation  of  a  foreign  at- 
tachment instituted  against  the  party  whose  name 
must  necessarily  be  used  at  law  for  the  recovery  of  the 
demand,  and  that  an  attaching  creditor  can  stand  on  no 
better  footing  than  his  debtor.  This  abundantly  ap- 
pears from  the  English  authorities,  and  the  adjudications 
in  our  sister  States  courts,  cited  in  the  argument.  A 
strong  instance  of  this  kind  occurred  in  this  court  in 
January  term,  1793.  John  Caldwell  brought  a  foreign 
attachment  against  Vance,  Caldwell  &  Vance,  and  laid 
it  on  effects  supposed  to  have  been  in  the  hands  of  An- 
drew &  James  Caldwell,  who  at  one  time  were  consid- 
erably indebted  to  them.  Upon  the  plea  of  nulla  bond, 
it  appeared  that  a  letter  had  been  written  authorizing 
Hugh  Moore  to  receive  this  debt,  and  apply  it  towards 
payment  of  a  debt  due  to  Moore  &  Johnston ;  and  the 
jury,  under  the  direction  of  the  court,  being  satisfied 
that  it  amounted  to  an  equitable  appropriation  of  the 
demand,  found  that  the  garnishees  had  no  effects  in 
their  hands  due  to  Vance,  Caldwell  &  Vance.  This 
court  sanctioned  the  verdict  by  their  judgment.  In  like 
manner  a  bond  made  assignable  in  its  first  creation, 
which  requires  by  our  act  of  assembly  the  ceremony  of 
a  seal  and  two  witnesses  to  authorize  the  assignee  to 
maintain  a  suit  in  his  own  name,  if  transferred  bond  fide, 
without  seal  or  witnesses,  is  not  liable  to  be  attached 
for  the  debt  of  the  obligee  resident  in  a  foreign  country. 
This  appears  perfectly  plain."  ^ 

^  United  States  v.  Vaughan,  3  Binney,  394. 

[372] 


CH.  XXIII.]    GARNISnEE'S    LIABILITY    FOR   PROPERTY.  §  'jl-^ 

§  513.  Where  a  garnishee  in  his  ans\Yer  sets  up  an 
assignment  of  the  property  in  his  hands  in  bar  of  his 
liability,  it  must  clearly  appear  that  an  actual  assign- 
ment ^Yas  in  fact  made.  Therefore,  Avhere  a  garnishee 
admitted  the  possession  of  money  of  the  defendant,  but 
stated  that  the  defendant  had  said  the  money  Avas  to 
go  to  a  third  person,  it  was  held  that  that  statement  did 
not  show  any  title  in  the  third  person,  and  the  gar- 
nishee was  charged.^  So  where,  upon  a  consignment 
of  goods  to  be  sold  on  commission,  the  consignees  ac- 
cepted an  order  drawn  upon  them  by  the  consignor,  by 
which  they  were  requested  to  pay  to  his  order,  in  thirty 
days,  the  sum  of  one  thousand  dollars,  or,  what  might 
be  due  after  deducting  all  advances  and  expenses,  and 
after  the  acceptance,  but  before  the  goods  were  sold, 
the  consignees  were  summoned  as  garnishees  of  the 
consignor;  it  was  decided  that  the  order,  not  being 
made  to  a  third  person,  could  not  operate  as  an  assign- 
ment, and  neither  was  it  a  negotiable  security;  and 
therefore  the  garnishees  were  charged.^ 

§  514.  If  a  creditor  attach  goods  which  appear  as 
the  property  of  the  defendant,  but  wherein  another 
person  has  nevertheless  an  interest,  which  he  communi- 
cates to  the  creditor  before  the  attachment  is  laid,  it  is 
said  the  creditor  is  bound  to  refund  to  such  person  his 
proportion  of  the  money  recovered  under  the  attach- 
ment, notwithstanding  the  judgment  of  a  competent 


^  Baker  v.  Moody,  1  Alabama,  315. 
^  C  ashman  v.  Ilaynes,  20  Pick.  132. 

32  [373] 


§  516  garnishee's    liability    for    property.    [cH.  XXIII. 

court  decreed  the  whole  to  the  plaintiff  as  the  property 
of  the  defendant.^ 


§  515.  11.  Liens.  In  its  most  extensive  signification 
the  term  lien  includes  every  case  in  which  real  or  per- 
sonal property  is  charged  with  the  payment  of  any 
debt  or  duty;  every  such  charge  being  denominated  a 
lien  on  the  property.  In  a  more  limited  sense  it  is  de- 
fined to  be  a  right  of  detaining  the  property  of  another 
until  some  claim  be  satisfied.^  The  law  recognizes  two 
species  of  lien,  particular  liens  and  general  liens.  Par- 
ticular liens  are,  where  a  person  claims  a  right  to  retain 
goods,  in  respect  of  labor  or  money  expended,  on  such 
goods,  and  these  liens  are  favored  in  law.  General 
liens  are  claimed  in  respect  of  a  general  balance  of  ac- 
count ;  and  are  founded  on  express  agreement,  or  are 
raised  by  implication  of  law,  from  the  usage  of  trade,  or 
from  the  course  of  dealing  between  the  parties,  whence 
it  may  be  inferred  that  the  contract  in  question  w'as 
made  wath  reference  to  their  usual  course  of  dealing.^ 

§  516.  If  a  garnishee  having  property  of  the  defend- 
ant in  his  possession,  has  a  valid  lien  thereon,  as  the  de- 
fendant could  not  take  the  property  from  him  without 
discharging  the  lien,  so  neither  can  a  creditor  take  it 
by  garnishment*  Therefore,  where  a  garnishee  to 
whom  goods  were  consigned,  had,  before  the  garnish- 


1  Bank  of  N.  America  v.  M'Call,  3  Binney,  338. 
^  Bouvier's  Law  Dictionary. 
*  2  Whcaton's  Sehvyn,  4th  Am.  Ed.  537. 
^  Nathan  v.  Giles,  5  Taunton,  558. 

[374] 


CH.  XXIII.]  garnishee's  llvbility  for  property.        §  518 

ment,  verbally  agreed  to  pay  to  a  third  person,  out  of 
the  proceeds  of  the  consignment,  a  bill  of  exchange 
drawn  by  the  consignor  on  the  garnishee,  it  was  held 
that  the  promise  was  binding  on  him,  and  gave  him  a 
lien  on  the  goods,  which  entitled  him  to  retain  them 
for  his  indemnity.^  This  rule  was  extended  in  iSouth 
Carolina,  to  a  case  where  the  lien  claimed  by  the  gar- 
nishee was  in  respect  of  a  general  balance  of  account.'-^ 

§  517.  Whether  the  garnishee  has  a  right  to  hold 
the  defendant's  property  against  an  attachment,  must 
depend  upon  tlie  actual  existence  of  a  lien,  as  contra- 
distinguished from  mere  possession.  If  he  have  no  lien, 
legal  or  equitable,  nor  any  right,  as  against  the  owner, 
by  contract,  by  custom,  or  otherwise,  to  hold  the  prop- 
erty in  security  of  some  debt  or  claim  of  his  own  ;  if  he 
has  a  mere  naked  possession  of  the  property  without 
any  special  property  or  lien  ;  if  the  defendant  is  the 
owner,  and  has  a  present  right  of  possession,  so  that  he 
might  lawfully  take  it  out  of  the  custody  of  the  gar- 
nishee ;  the  garnishee  cannot  claim  to  satisfy  his  debt 
out  of  it  before  the  attachment  can  reach  it  ;'^  but  must 
attach  it,  as  any  other  creditor,  for  his  debt.* 

§  518.  TIL  Mortgages  and  Pledges.  A  pledge  or 
pawn  is  a  bailment  of  personal  property,  as  a  security 
for  some  debt  or  eno;ao;ement.  A  morto;ap:e  of  oroods 
is  distinguishable  from  a  mere  pawn.     By  a  grant  or 


1  Grant  v.  Shaw,  16  INIass.  341 ;  Curtis  v.  Norris,  8  Pick.  280. 
-  Bank  v.  Levy,  1  McMuIlan,  431. 

2  Allen  V.  Hall,  5  Metcalf,  2G3. 

*  Allen  V.  Megguire,  15  Mass.  490. 

[  37-3  ] 


§  519  garnishee's    liability   for   property.    [cH.  XXIII. 

conveyance  of  goods  in  gage  or  mortgage,  the  whole 
legal  title  passes  conditionally  to  the  mortgagee  ;  and 
if  the  goods  are  not  redeemed  at  the  time  stipulated, 
the  title  becomes  absolute  at  law,  although  equity  wall 
interfere  to  compel  a  redemption.  But  in  a  pledge  a 
special  property  only  passes  to  the  pledgee,  the  general 
property  remaining  in  the  pledger.  There  is  also  an- 
other distinction.  In  the  case  of  a  pledge  of  personal 
property,  the  right  of  the  pledgee  is  not  consummated, 
except  by  possession  ;  and  ordinarily  when  that  posses- 
sion is  relinquished,  the  right  of  the  pledgee  is  extin- 
guished, or  waived.  But  in  the  case  of  a  mortgage 
of  personal  property,  the  right  of  property  passes  by 
the  conveyance  to  the  pledgee,  and  possession  is  not, 
or  may  not  be,  essential  to  create,  or  to  support  the 
title.i 

§  519.  The  principle  has  been  before  laid  down  that 
a  garnishee  can  be  rendered  liable  in  respect  of  the  de- 
fendant's property  in  his  hands,  only  wdien  the  property 
is  capable  of  being  seized  and  sold  under  execution. 
Upon  general  principles,  and  in  the  absence  of  statutory- 
interposition,  an  execution  cannot  be  levied  on  a  mere 
equity.  The  interest  of  a  pledger  or  mortgager  in  per- 
sonalty pledged  or  mortgaged,  is  the  mere  equitable 
right  of  redemption,  by  paying  the  debt,  or  performing 
the  engagement,  for  the  payment  or  performance  of 
which  the  property  was  pledged  or  mortgaged.  Hence, 
personalty  so  situated  is  not  subject  to  sale  under  exe- 
cution, and,  therefore,  not  attachable.^ 


^  Story  on  Bailments,  4th  Ed.  §  286,  287. 

2  Badlam  v.  Tucker,  1  Pick.  389  ;  Andrews  v.  Ludlow,  5  Ibid.  28  ;  IIol- 

[376] 


CH.  XXIII.]  garnishee's  liability  for  property.        §  521 

§  520.  It  follows  necessarily  that  the  pledgee  or 
mortgagee  of  personalty  cannot  be  held  as  garnishee  of 
the  pledger  or  mortgager,  while  the  property  is  the 
subject  of  the  pledge  or  mortgage.-^  Nor,  if  there  be 
no  agreement  that  he  shall  sell  the  property  to  pay  the 
debt  for  which  it  is  pledged  or  mortgaged,  can  he  be 
compelled  to  do  it;^  but  if  there  be  such  an  agreement, 
and  the  property  in  pursuance  thereof  be  sold,  any  sur- 
plus remaining  after  the  payment  of  the  debt  secured 
may  be  reached  by  garnishment.^ 

§  521.  Any  relinquishment,  however,  of  the  lien,  will 
open  the  way  for  the  garnishment  of  the  pledgee. 
Therefore,  where  a  creditor  who  had  property  in  his 
possession  which  he  supposed  to  be  pledged  to  him  for 
the  payment  of  a  debt  due  him,  was  summoned  as  gar- 
nishee of  his  debtor,  and  afterwards  caused  the  property 
to  be  attached  by  a  writ  in  his  own  favor ;  it  was  held 
that  he  had  relinquished  the  lien  he  claimed  to  have 
had  by  the  delivery  of  the  property  as  a  pledge,  and 
was,  therefore,  subject  to  garnishment.* 

brook  V.  Baker,  5  Maine,  309  ;  Haven  v.  Low,  2  New  Hamp.  13;  Piequet 
V.  Swan,  4  Mason,  443  ;  Thompson  v.  Stevens,  10  Maine,  27;  Sargent  v. 
Carr,  12  Maine,  39G  ;  Lyle  v.  Barker,  5  Binney,  457  ;  Hall  v.  Page,  4  Geor- 
gia, 428. 

^  Badlam  v.  Tucker,  1  Pick.  389  ;  Central  Bank  v.  Prentice,  18  Pick.  39G  ; 
Whitney  v.  Dean,  5  New  Hamp.  249  ;  Hudson  v.  Hunt,  Ibid.  538  ;  Howard 
V.  Card,  6  Maine,  353  ;  Kergin  i'.  Dawson,  1  Gllman,  86. 

^  Badlam  v.  Tucker,  1  Pick.  389  ;  Howard  v.  Card,  6  Maine,  353. 

2  Badlam  v.  Tucker,  1  Pick.  389. 

*  Swett  V.  Brown,  5  Pick.  178. 

32*  [377] 


CHAPTEE  XXIV. 

THE   LIABILITY    OF   A   GARNISHEE   AS   A   DEBTOR   OF   THE    DEFEND- 
ANT.  GENERAL   VIEWS.  —  DIVISION    OF   THE   SUBJECT. 

§  522.  "We  reach  now  the  consideration  of  a  gar- 
nishee's liabihty  in  respect  of  his  indebtedness  to  the 
defendant  —  a  field  of  inquiry  coextensive  with  that 
over  which  we  have  just  passed,  in  relation  to  the  kin- 
dred topic  of  his  liability  in  regard  to  property  of  the 
defendant  in  his  possession.  The  two  subjects  will  be 
seen  to  have  many  principles  in  common.  For  instance, 
we  have  seen  that,  except  in  cases  of  fraudulent  trans- 
fers, the  garnishee's  liability  for  the  defendant's  property 
in  his  possession,  depends  much  upon  whether  the  de- 
fendant has  a  right  of  action  against  him  for  the  prop- 
erty. So,  in  order  to  charge  a  garnishee  as  a  debtor  of 
the  defendant,  it  is  a  general  principle  —  subject,  of 
course,  to  exceptions  —  that  the  defendant  shall  have  a 
cause  of  action,  present  or  future,  against  him.^ 

§  523.   The  aim  of  this  proceeding  is  to  invest  the 

^  ]\Iaine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438;  White  v.  Jenkins,  16 
Ibid.  02  ;  Brigden  v.  Gill,  Ibid.  522  ;  Rundlet  v.  Jordan,  3  Maine,  47  ;  Haven 
V.  Wentworth,  2  New  Ilamp.  93  ;  Adams  v.  Barrett,  Ibid.  3  74  ;  Pijier  v.  Piper, 
Ibid.  439;  Greenleaf  i;.  Perrin,  8  Ibid.  273;  Paul  v.  Paul,  10  Ibid.  117; 
Ilutchins  I'.  Ilawley,  9  Vermont,  295  ;  Iloyt  v.  Swift,  13  Ibid.  129  ;  Walke  v. 
Mi'Gcliee,  11  Alabama,  273;  Ilarrell  v.  Wliitman,  19  Ibid.  135;  Cook  v. 
AValtball,  20  Ibid.  334. 

[  378  ] 


CH.  XXIV.]    garnishee's  liability  as  a  debtor.         §  525 

plaintiff  with  the  right  and  power  to  collect  from  the 
garnishee  a  debt  due  from  the  latter  to  the  defendant, 
and  to  appropriate  it,  when  collected,  to  the  satisfaction 
of  the  defendant's  liability  to  the  plaintiff.  It  is,  in 
effect,  a  suit  by  the  defendant  in  the  plaintiff's  name 
against  the  garnishee,  without  reference,  and  indeed  in 
opposition,  to  the  defendant's  concurrence.  Hence  the 
plaintiff  usually  occupies  just  the  position  of  the  defend- 
ant, as  against  the  garnishee,  with  no  more  rights  than 
the  defendant  had,  and  liable  to  be  met  by  any  defence 
which  the  garnishee  might  make  against  a  suit  by  the 
defendant. 

§  524.  That  npon  which  the  garnishment  operates 
in  this  class  of  cases  is  crcdils.  The  term  credit,  in  this 
connection,  is  used  in  the  sense  in  which  it  is  under- 
stood in  commercial  law,  as  the  correlative  of  dcM. 
Wherever,  therefore,  there  is  a  credit,  in  this  sense, 
there  is  a  debt,  and  without  a  debt  there  can  be  no 
credit.^  It  was  at  one  time  attempted  to  hold  by  gar- 
nishment, not  only  debts  due  from  the  garnishee,  but 
debts  of  others  to  the  defendant,  the  evidence  of  which, 
as  notes,  bonds,  or  other  choscs  in  action,  might  be  in  the 
garnishee's  hands  ;  but  as  it  is  w^ell  settled  that  cJioses  in 
action  are  not  attachable,  the  attempt  failed,  and  it  was 
held  that  credits  included  only  debts  due  from  the  gar- 
nishee to  the  defendant.^ 

§  525.   We  have  said  that  it  is  usually  necessary,  in 
order  to  charge  a  garnishee,  that  the  defendant  should 


1  Wentwortli  v.  Wliittemore,  1  Mass.  4  71 ;  WiKler  v.  Bailey,  3  Ibid.  280. 
"^  Liipton  V.  Cutter,  8  Pick.  298.     See  ante,  §  425. 

[379] 


§  526  garnishee's    liability   as    a    debtor.     [cH.  XXIV. 

have  a  cause  of  action  against  him.  It  will  of  course 
be  understood  that  it  is  not  every  cause  of  action  that 
will  render  a  garnishee  liable,  but  only  a  cause  of  action 
for  the  recovery  of  a  debt.  Indeed,  the  rule  announced 
in  Alabama  may  be  considered  as  authoritative,  that  no 
judgment  can  be  rendered  against  a  garnishee,  when 
there  is  not  a  clear  admission  or  proof  of  a  legal  debt, 
due  or  to  become  due  to  the  defendant.^  A  legal  debt, 
as  contradistinguished  from  an  equitable  demand,  is 
that  alone  which  will  authorize  a  judgment  against  a 
■garnishee,  at  least  under  any  judicial  organization  which 
separates  legal  and  equitable  jurisdictions.  Therefore, 
where  it  was  attempted  to  charge  a  garnishee  of  A.,  by 
showing  that  the  garnishee  had  executed  a  note  to  B., 
which,  at  the  time  of  the  garnishment  was  in  the  pos- 
session of  A.,  but  there  was  no  proof  that  B.  had  in- 
dorsed the  note,  or  that  the  garnishee  had  promised  to 
pay  it  to  A.,  it  was  held  that  the  court  could  not  in  this 
proceeding  assume  to  settle  the  equitable  rights  of  the 
parties  to  the  note,  and  that  the  plaintiff  could  hold 
only  such  debts  as  the  defendant  could  recover  by  ac- 
tion at  law  in  his  own  name,  that  is,  his  legal  rights  as 
distinguished  from  equitable.^ 

§  526.  In  no  case  where  the  claim  of  the  defendant 
against  the  garnishee  rests  in  unliquidated  damages, 
can  the  garnishee  be  made  liable.  B.  &  P.,  partners, 
were  summoned  as  garnishees  of  T.,  and  it  appeared 
that  they  had  signed  and  delivered  to  T.  a  paper  in  the 
followino;  words :  — 


^  Presnall  v.  Mabry,  3  Porter,  105. 

2  Ilarrell  v.  Wliitman,  19  Alabama,  135;  Hugg  t\  Booth,  2  Iredell,  282. 

[380] 


en.  XXIV.]    garnishee's  liability  as  a  debtor.         §  527 

"  This  may  certify  that  if  Mr.  S.  T.  should  wish  to 
purchase  of  us  tin-ware  at  our  wholesale  prices  within 
twelve  months  from  date,  and  should  have  0.  P.'s  note 
in  his  possession,  we  will  take  the  same  in  payment." 

Within  twelve  months  from  the  date  of  this  instru- 
ment, T.  presented  to  B.  &  P.  four  notes  of  0.  P.,  and 
demanded  their  amount  in  tin-ware  at  wholesale  prices, 
and  B.  &  P.  refused  to  comply  with  the  demand.  It 
was  contended  that  on  this  state  of  facts  B.  &  P.  might 
be  held  as  garnishees  of  T. ;  hut  the  court  decided  that 
as  T.'s  claim  was  not  a  legal  debt,  but  rested  only  in 
unliquidated  damages,  the  garnishment  could  not  be 
sustained.^  So,  too,  a  mere  liability  of  the  garnishee  to 
an  action  on  the  part  of  the  defendant  for  negligence 
or  fraud,  slander,  assault  and  battery,^  or  for  the  wrong- 
ful conversion  of  the  defendant's  property,^  or  for  the 
recovery  from  a  creditor  of  usurious  interest  paid  him 
by  the  defendant,'^  cannot  be  the  foundation  of  a  judg- 
ment against  the  garnishee. 

§  527.  It  may  further  be  considered  as  settled,  that 
the  debt  must  be  such  as  is  due  in  monei/^  All  debts,  in 
the  absence  of  contrary  stipulations  between  the  par- 
ties, must  be  paid  in  money.  Therefore,  where  the 
garni.shee  acknowledged  an  indebtedness  to  the  defend- 
ant payable  in  mason's  work  and  materials,  it  was  de- 
cided that  he   could  not  be  charged.*^     So  where  the 

^  Hugg  V.  Booth,  2  Iredell,  282  ;  Deaver  v.  Keith,  5  IredeU,  374  ;  Leefe 
V.  Walker,  18  Louisiana,  1. 

-  Kundlet  v.  Jordan,  3  Maine,  47. 
»  Paul  V.  Paul,  10  New  Hamp.  117. 

*  Boardman  v.  Roe,  13  Mass.  104;  Graham  i'.  Moore,  7  B.  jNIonroe,  53. 
^  Minis  V.  Parker,  1  Alabama,  421. 

*  Wrigley  v.  Geyer,  4  Mass.  102. 

[381] 


§  528  garnishee's    liability    as    a   debtor.     [cH.  XXIYi 

garnishee  had  given  a  bond  to  the  defendant  for  "  1,500 
acres  of  land  warrant,  and  800  and  odd  dollars  payable 
in  whiskey."  ^  So  where  the  garnishee  had  the  defend- 
ant in  his  employ  as  a  laborer,  under  an  agreement 
that  he  should  be  paid  in  orders  on  another,  the  gar- 
nishee was  discharged.^  So,  also,  where  the  garnishee 
was  indebted  to  the  defendant  in  a  certain  sum  to  be 
paid  in  "store  accounts;"^  and  where  payment  was  to 
be  made  in  notes  of  the  defendant  to  other  persons,  to 
be  procured  by  the  garnishee,*  he  was  held  not  to  be 
liable.  In  all  these  cases  the  court  jDroceeded  upon 
the  obvious  principle,  that  they  had  no  power  to  inter- 
fere with  the  contract  between  the  defendant  and  the 
garnishee,  and  to  make  the  latter  pay  in  money,  what 
he  had  agreed  to  pay,  and  the  defendant  had  agreed  to 
receive,  in  something  else. 

§  528.  Still  we  find  in  Maryland,  that  where  a  gar- 
nishee was  indebted  to  the  defendant  in  a  sum  of 
money,  payable,  by  express  agreement,  in  work  and 
labor,  he  was  charged.^  And  in  Massachusetts,  it  has 
been  decided  that  the  maker  of  a  note  payable  in 
Jiorses,^  or  in  goods'^  could  be  held  as  garnishee.  This 
unusual  decision,  h6wever,  rests  upon  an  express  statu- 


^  MclNIinn  v.  Hall,  2  Tennessee,  328.  See  Blackburn  v.  Davidson,  7  B. 
Monroe,  101. 

"  WnUard  v.  Butler,  14  Pick.  550. 

^  Smiti^  V.  Chapman,  6  Porter,  3G5.  See  Blair  v.  Khodes,  5  Alabama, 
648. 

*  Mims  V.  Parker,  1  Alabama,  421. 

'  Loudcrman  v.  Wilson,  2  Harris  &  Johnson,  379. 

®  Comstock  V.  Farnum,  2  Mass.  96. 

^  Clark  r.  King,  2  Mass.  524. 

[382] 


CH.  XXIV.]    garnishee's  liability  as  a  debtor.         §  530 

tory  provision,  autliorizing  one  who  was,  when  served 
with  process,  "  bound  to  deUver  to  the  defendant,  at  a 
then  future  day,  any  specific  article  or  articles  whatso- 
ever, other  than  money,"  to  be  declared  trustee  or  gar- 
nishee of  the  defendant,  and  permitting  him  to  deliver 
the  specific  articles  to  the  sheriff,  when  execution 
should  be  issued  against  the  defendant. 

§  529.  The  debt  from  the  garnishee  to  the  defend- 
ant, in  respect  of  which  it  is  sought  to  charge  the  for- 
mer, must  moreover  be  absolutely  payable,  at  present 
or  in  future,  and  not  dependent  on  any  contingency. 
If  the  contract  between  the  parties  be  of  such  a  nature 
that  it  is  uncertain  and  contingent  whether  any  thing 
will  ever  be  due  in  virtue  of  it,  it  will  not  give  rise  to 
such  a  credit  as  may  be  attached  :  for  that  cannot  prop- 
erly be  called  a  debt,  which  is  not  certainly,  and  at  all 
events  payable,  either  at  the  present  or  some  future 
period.^ 

§  530.  Therefore,  where  an  attempt  was  made  to 
attach,  by  garnishment  of  a  ship  owner,  the  wages  of  a 
sailor  employed  on  his  ship,  then  at  sea,  and  which  had 
not  arrived  at  any  port  of  unlading,  it  was  held  that, 
as  it  was  uncertain  whether  the  ship  ever  would  arrive, 
and,  therefore,  whether  any  thing  would  ever  become 
due  to  the  defendant,  it  could  not  be  called  a  debt,  and 
the  garnishee  was  not  therefore  chargeable;^  and  this 
though  the  vessel  had  arrived  just  outside  of  the  harbor 

^  Cushing's  Ti'ustee  Process,  37. 

^  AVeut worth  v.  Wbittemore,  1  Mass.  471. 

[  383  ] 


§  533  garnishee's   liability   as   a   debtor.     [ciL  XXIV 

to  which  she  was  bound,  and  was  by  grounding  pre- 
vented from  entering  it.-^ 

§  531.  So,  where  there  was  a  contract  between  the 
shipper  of  a  cargo  and  the  owner  of  the  ship,  that  the 
latter  should  receive  a  share  of  the  profits  arising  on 
the  cargo,  and,  before  the  comj)letion  of  the  voyage, 
the  shipper  was  summoned  as  garnishee  of  the  owner, 
the  court  regarding  it  as  contingent  whether  the  ship 
would  successfully  terminate  the  voyage,  or  if  so, 
whether  there  would  be  any  profits  on  the  cargo,  con- 
sidered that  there  was  no  debt  capable  of  attachment.^ 

^  532.  So,  where  the  srarnishee  had  received  from 
the  defendants  a  bill  of  exchange,  and  gave  a  receipt 
therefor,  promising  to  account  to  the  defendants  for  the 
proceeds  of  the  bill  when  received  ;  and  before  the 
payment  of  the  bill  he  w^as  garnished  ;  it  was  held, 
that,  as  it  was  contingent  whether  the  bill  would  ever 
be  paid,  he  could  not  be  charged.^ 

§  533.  So,  where  one,  acting  for  himself  and  as  agent 
of  others,  left  a  part  of  a  cargo,  shipped  on  a  vessel  of 
which  he  was  master,  and  in  which  he  and  the  defend- 
ants were  jointly  interested,  with  merchants  abroad,  to 
be  sold  on  his  account,  and  the  proceeds  to  be  subject 
to  his  order,  and  took  the  receipt  of  the  merchants  to 
that  effect,  and  while  the  goods  were  in  this  situation  he 


^  Taber  v.  Nye,  12  Tick.  105. 

°  Davis  V.  Ham,  3  Mass.  33. 

'  Frotliingham  v.  Haley,  3  Mass.  G8. 

[  38d  ] 


CH.  XXIV.]    garnishee's  liability  as  a  debtor.         §  536 

was  summoned  as  garnishee  of  the  other  parties  to 
whom  jointly  with  him  the  goods  belonged ;  it  was  de- 
cided that  the  credit  was  a  contingent  one,  and  there- 
fore not  attachable.^ 

§  534.  So,  where  a  lessee,  who  covenanted  to  pay 
rent  quarter!}^,  was  summoned  as  garnishee  of  the  lessdr, 
he  was  held  only  for  such  quarters'  rent  as  were  due 
when  he  was  summoned  ;  all  beyond  that  being  consid- 
ered conting;ent  and  uncertain.^ 

§  535.  So,  where  one  received  a  bill  of  lading  and 
an  invoice  of  goods  consigned  to  him.  and,  before  the 
receipt  of  the  goods,  was  garnished  in  a  suit  against  the 
consignor,  he  was  discharged,  because  it  was  contingent 
whether  he  would  ever  receive  or  accept  the  consign- 
ment.^ 

§  536.  So,  where  it  appeared  from  the  garnishee's 
answer,  that  he  had  employed  the  defendant  as  a  bro- 
ker to  make  a  purchase  of  a  cargo  of  lemons  and 
oranges,  with  an  agreement  that  the  defendant  should 
have  one  third  part  of  the  net  profits  upon  a  resale,  and 
that,  at  the  time  of  the  garnishment,  the  whole  pro- 
ceeds  of  the  resale  had  not  been  received  ;  it  was  held 
that  it  was  uncertain  and  contingent  whether  there 
would,  on  closing  the  transaction,  he  any  thing  due  the 
defendant,  and  the  garnishee  was  discharged.^ 


1  Willard  v.  Sheafe,  4  Mass.  235. 
^  TV^ood  V.  Partridge,  1 1  Mass.  488. 
3  Grants.  Shaw,  16  Mass.  341. 
*  "Williams  v.  Marston,  3  Pick.  65. 

33  [3S5] 


§  539  garnishee's    liability   as    a   debtor.     [cH.  XXIV. 

§  537.  So,  where  a  garnishee  held  real  estate  of  the 
clefenclant  under  a  promise  to  sell  and  pay  over  the 
proceeds,  it  was  held  that  such  a  promise  to  pay  over 
money  was  but  an  executory  contract,  and  that  there 
might  be  several  contingencies,  without  the  fault  of  the 
garnishee,  that  would  prevent  his  owing  money ;  and 
he  was  discharged.-'^ 

§  538.  So,  where  a  contract  existed  between  the  gar- 
nishee and  the  defendant,  by  which  the  defendant  was 
to  be  employed  by  the  garnishee  in  a  manufactory  for 
a  salary,  and  was  to  deposit  with  the  garnishee  $300  to 
indemnify  him  against  loss  in  the  business,  and,  upon 
the  dissolution  of  the  contract,  so  much  of  the  sum  de- 
posited as  should  not  be  required  to  indemnify  the  gar- 
nishee against  loss  was  to  be  repaid  to  the  defendant ; 
it  was  held  to  be  uncertain  and  contingent,  when  the 
garnishee  was  summoned,  whether  the  defendant  would 
ever  be  entitled  to  recover  the  $300  deposited,  and 
that,  therefore,  the  garnishee  was  not  liable.^ 

§  539.  So,  where  a  testator  bequeathed  to  his  wife 
"  the  use  of  thirty  shares  in  the  Oxford  Bank ;  said 
shares,  at  her  decease,  to  be  equally  divided  between 
his  heirs,"  and  died,  leaving  several  children,  and  his 
executor  was  summoned  as  garnishee  of  the  husband  of 
one  of  them ;  it  was  held  that  the  reversionary  interest 
of  any  one  of  the  children  in  these  shares  was  contin- 
gent, and  consequently  not  liable  to  be  attached  in  the 
hands  of  the  executor.^ 


1  Guild  V.  Ilolbrook,  11  Pick.  101. 

2  Faulkner  i'.  Waters,  11  Pick.  473. 

3  Ptich  V.  Waters,  22  Pick.  5G3. 

[386] 


CH.  XXIV.]    garnishee's  liability  as  a  debtor.         §  543 

§  540.  So,  where  the  garnishee  disclosed  that  the  de- 
fendants, being  indebted  to  him,  had  caused  certain  of 
their  goods  to  be  insured,  and  the  pohcy  required  pay- 
ment, in  case  of  a  loss,  to  be  made  to  him,  and  that  the 
goods  were  destroyed  by  fire,  and  before  proof  of  the 
loss  was  made  he  was  garnished  ;  it  was  considered  that 
his  liability  to  the  defendants  was  contingent,  and  he 
was  discharpjed 


§  541.  So,  where  a  son  gave  a  bond  to  his  father  for 
the  payment  of  certain  sums  of  money,  and  the  delivery 
of  certain  quantities  of  provisions,  at  fixed  times  in  each 
year  during  his  father's  life  ;  it  was  held  that  he  could 
not  be  charged  as  garnishee  of  the  father  for  any  thing 
not  actually  payable  at  the  time  when  he  vvas  gar- 
nished ;  all  future  payments  being  contingent,  depend- 
ing on  the  continuance  of  the  father's  life.^ 

§  542.  So,  w^here  a  note  was  executed,  payable  on  a 
contingency,  and  before  it  became  payable  absolutely 
the  maker  was  summoned  as  garnishee  of  the  payee  ; 
it  was  held  that  the  contingency  not  having  happened 
upon  which  it  would  become  absolutely  due,  he  could 
not  be  charged.^ 

§  543.  So,  where  a  consignee  who  had  sold  goods 
upon  a  credit,  and  guarantied  the  sale,  was  summoned 
as  garnishee  of  the  consignor,  before  the  expiration  of 
the  credit,  it  was  considered  that  his  undertaking  w^as 


1  Meacham  v.  McCorbitt,  2  Metcalf,  352. 

*  Say  ward  v.  Drew,  6  Maine,  2G3. 

5  Burke  r.  Whitcomb,  13  Vermont,  421. 

[387] 


§  544  garnishee's    liability    as    a    debtor.     [cH.  XXIV. 

collateral   and  contingent,  and  that  he  could  not  be 
charged.^ 

§  544.  But  while  the  proposition  that  a  debt  not 
actually  and  at  all  events  payable,  but  depending  on  a 
contingency,  cannot  be  attached,  is  sufficiently  simple, 
the  application  of  it  to  particular  cases  which  raise  the 
question  of  contingent  or  not,  is  not  always  of  easy  so- 
lution. "  Thus  much,  however,"  in  the  language  of  the 
Supreme  Court  of  Massachusetts,  "  may  be  considered 
as  clear,  that  the  contingency  must  affect  the  property 
itself,  or  the  debt  which  is  supposed  to  exist,  and  not 
merely  the  title  to  the  property  in  the  possession  of 
the  trustee,  or  his  liability  on  a  contract  which  he  has 
actually  made,  but  the  force  or  effect  of  which  is  in 
litigation.  Examples  showing  the  distinction  may  be 
taken  from  the  cases  decided.  Thus  the  wages  of  a 
sailor  on  board  a  vessel  which  has  not  arrived,  are  not 
liable  to  the  process,  because  whether  due  or  not  de- 
pends on  the  arrival  of  the  vessel.^  So  shippers  of  a 
cargo,  under  contract  with  the  owner  of  the  ship  that 
he  shall  have  a  share  of  the  net  profits  arising  on  the 
cargo,  are  not  liable  as  trustees  until  the  termination  of 
the  voyage,  as  it  is  altogether  contingent  whether  any 
thing  will  ever  be  due.^  There  are  many  other  cases 
of  a  similar  character,  but  these  two  are  sufficiently  dis- 
tinct, to  show  what  is  intended  in  the  decisions  by  the 
term  contingent,  that  is,  an  uncertainty  whether  any 
thing  will  ever  come  into  the  hands  of  the  trustee,  or 


^  Tucker  V.  Clisby,  12  Pifk.  22. 

^  Wentworth  v.  Whittemore,  1  Mass.  471. 

'  Davis  V.  Ham,  3  Mass.  33. 

[388] 


CH.  XXIV.]    garnishee's  liability  as  a  debtor.         §  546 

whether  he  will  ever  be  indebted ;  the  iniccrtainty 
arising  from  the  contract,  express  or  implied,  between 
the  debtor  and  the  trustee.  This  principle  has  never 
been  applied  to  a  case  where  property  is  actually  in  the 
possession  of  the  trustee,  claimed  by  the  debtor,  his 
right  to  it  being  in  controversy,  nor  to  demands  against 
the  trustee  himself  in  the  nature  of  a  debt  due  to  the 
defendant,  which,  however,  may  be  in  dispute  between 
them.  In  such  cases  the  process  is  considered  as  attach- 
ing, and  is  postponed  until  a  liabihty  to  the  debtor  is 
ascertained."  ^ 

§'  545.  Therefore,  where  the  garnishee  answered  that 
he  had  a  sum  of  money  in  his  hands,  the  right  to  which 
was  contested  between  the  defendant  and  other  parties, 
and  had  been  submitted  to  referees,  the  court  held  that 
here  was  no  contingency  as  to  the  property,  but  merely 
as  to  the  title,  and  that  such  contingency  did  not  dis- 
charge the  garnishee  ;  and  that  the  proceedings  might 
be  postponed  until  it  should  be  ascertained  to  which 
party  the  money  belonged.^ 

§  546.  Another  proposition  has  been  announced, 
which  seems  necessarily  to  result  from  the  principle 
that  the  plaintiff  cannot  recover  against  the  garnishee 
unless  the  defendant  could  ;  and  that  is,  that  where  the 
garnishee,  if  sued  by  the  defendant,  would  be  entitled 
to  demand  security  to  be  given  by  the  defendant,  be- 
fore judgment  could  be  rendered  against  him,  the  at- 
tachment plaintiff  cannot  compel  the  garnishee  to  pay 


1  Thorndike  v.  DeWolf,  G  Pick.  120  ;  Dwinel  v.  Stone,  30  Maine,  384. 

2  Thorndike  v.  DeWolf.  G  Pick.  120. 

33  =-^-  [389] 


§  547  garnishee's   liability   as   a   debtor.     [cH.  XXIV. 

the  money  without  giving  the  security.  Thus,  where 
an  executor  was  garnished  on  account  of  a  legacy  be- 
queathed to  the  defendant,  which  the  defendant  could 
not  have  recovered  without  giving  the  executor  a  re- 
funding bond,  it  was  held  that  the  latter  could  not  be 
charged  as  garnishee  until  the  plaintiff  indemnified 
him.^ 

§  547.  The  farther  consideration  of  the  liability  of 
a  garnishee,  in  respect  of  indebtedness  to  the  defendant, 
will  be  prosecuted  in  the  succeeding  chapters  under  the 
following  heads :  — 

I.  The  garnishee's  liability,  as  affected  by  the  time 
when  his  debt  to  the  defendant  is  payable  : 

II.  As  affected  by  his  having  codebtors,  and  by  the 
number  of  the  defendants,  and  the  number  of  his  cred- 
itors : 

III.  As  affected  by  the  want  of  privity  of  contract 
or  of  interest  between  him  and  the  defendant : 

ly.  His  liability,  as  a  party  to  a  promissory  note  : 

V.  His  liability,  as  affected  by  preexisting  contracts 
with  the  defendant  or  third  persons : 

VI.  As  affected  by  a  fraudulent  attempt  by  the  de- 
fendant to  defeat  the  payment  of  his  debts  : 

VII.  As  affected  by  an  equitable  assignment  of  the 
debt: 

VIII.  As  affected  by  the  commencement,  pendency, 
and  completion  of  legal  proceedings  against  him,  by  the 
defendant,  for  the  recovery  of  the  debt. 


1  Ross  V.  M'Kinny,  2  Rawle,  227, 

[390] 


CHAPTEE    XXV. 

THE   garnishee's    LIABILITY,   AS   AFFECTED    BY   THE    TIME   WHEN 
HIS   DEBT   TO   THE   DEFENDANT    IS    PAYABLE. 

§  548.  Though  the  doctrine  is  well  settled  that, 
where  it  is  contingent  whether  the  garnishee  will  ever 
owe  the  defendant  money,  he  cannot  be  made  liable,  it 
by  no  means  follows  that  where  there  is  a  present  debt, 
payable  in  the  future,  the  same  exemption  exists.  In 
a  state  of  society  where  a  system  of  credit  is  so  exten- 
sively established  as  in  this  country,  it  would  greatly 
impede  the  collection  of  debts,  if  no  credits  of  a  defend- 
ant could  be  reached  but  those  actually  due  and  paya- 
ble at  the  time  of  the  garnishment.  Hence,  in  some 
States,  it  has  been  considered  necessary  to  provide  by 
express  enactment  for  the  attachment  of  debts  not  fall- 
ing due  until  after  the  service  of  the  writ ;  though  on 
general  principles  such  provision  would  seem  to  be  un- 
necessary, since  the  almost  uniform  current  of  decision 
has  been  in  favor  of  the  operation  of  the  garnishment 
in  such  cases. 

§  549.  In  Tennessee,  it  has  been  held  that  a  debt  not 
due  cannot  be  attached.  In  the  case  in  which  this  de- 
cision was  had,  it  appeared  that  the  garnishee  owed  the 
defendant  money,  which  was  not  due  at  the  time  of  the 

[391] 


§  550  garnishee's   liability   as   a   debtor.      [cH.  XXV. 

garnishment,  but  became  due  between  that  time  and 
the  filing  of  the  answer,  and  was  paid  at  maturity. 
The  court  said,  —  "by  the  provisions  of  the  act,  the 
person  is  summoned  to  answer  what  he  is  indebted  at 
the  time  of  tlie  summons.  There  is  no  equitable  con- 
struction by  which  the  court  can  feel  authorized  to  go 
beyond  the  words  of  the  act,  to  reach  a  case  of  indebt- 
edness ;  'the  act  has  been  taken  with  strictness."^  This 
is  believed  to  be  the  only  State  in  which  this  position 
is  taken,  and  from  the  report  of  this  case  we  are  justi- 
fied in  supposing  that  the  general  principles  bearing 
on  the  matter  were  not  presented  by  counsel  or  con- 
sidered by  the  court.  The  court  say,  —  "the  person  is 
summoned  to  answer  what  he  is  indebted  at  the  time 
of  the  summons ; "  and  confounding  indebtedness  with 
time  of  payment,  they  consider  that,  because  the  debt 
was  not  actually  due  and  payable  at  the  time  the  gar- 
nishee was  summoned,  it  was  no  debt.  They  overlook 
the  fact  that  the  law  everywhere  recognizes  the  exist- 
ence of  dehitum  in  prcesenti,  solvendum  in  fiduro,  and  that 
one  who  has  engaged  to  pay  another  a  sum  of  money 
at  a  future  time  is  as  much  a  debtor  as  he  whose  time 
of  payment  has  already  passed.  It  is  sufficient  to  say, 
that  this  decision  is  adverse  to  the  entire  adjudications 
elsewhere,  in  England  and  this  country,  and  must  be 
considered  as  overborne  by  the  weight  of  authority,  as 
well  as  by  principle. 

§  550.  Thus,  by  the  custom  of  London,  money  due 
to  a  defendant  from  a  garnishee  by  bill  or  note,  or  by 
verbal  agreement,  but  not  payable  at  the  time  of  the 

>  Childress  v.  Dickins,  8  Yerger,  113  ;  M'jMinn  v.  Hall,  2  Tennessee,  328. 

[392] 


CH.  XXV.]    garnishee's  liability  as  a  debtor.  §  551 

garnLsliment,  may  be  attached,  and  judgment  may  be 
rendered  in  respect  thereof  at  once,  but  no  execution 
shall  issue  till  the  time  of  payment  arrives.^  The  same 
doctrine  has  been  announced  in  Maine,^  Massachusetts/ 
Pennsylvania/  Maryland/  North  Carolina/  and  Ala- 
bama/ and  may  be  regarded  as  firmly  established. 

§  551.  But  in  order  to  attach  a  debt  payable  in  fii- 
turo,  it  must  be  a  certain  debt,  which  will  become  pay- 
able upon  the  lapse  of  time,  and  not  a  contingent 
liability,  which  may  become  a  debt  or  not,  on  the  per- 
formance of  other  acts,  or  the  happening  of  some  un- 
certain event.  Thus,  where  the  salary  of  a  minister 
was  payable  quarterly,  with  an  agreement  that  if  he 
entered  on  a  quarter  and  did  not  complete  it,  nothing 
should  be  due  for  such  service  ;  and  the  minister,  in 
the  middle  of  a  quarter,  tendered  his  resignation,  which 
was  accepted  ;  and  the  parish  afterwards  voted  to  pay 
him  pro  rata  for  the  time  of  his  service,  after  the  com- 
mencement of  the  quarter ;  it  was  held  that  the  parish 
was  not  liable,  as  garnishee  of  the  minister,  on  a  pro- 
cess served  after  the  resignation  and  before  the  passing 
of  the  vote ;  because  when  the  process  was  served 
there  was  no  debt,  and  the  subsequent  vote  could  not 
relate  back  so  as  to  make  a  debt  at  that  time.^ 


1  Priv.  Lond.  261,  2G2. 

^  Sayward  v.  Drew,  6  Maine,  263.  j 

8  Willard  v.  Sheafe,  4  Mass.  235. 

*  Walker  v.  GIbbs,  2  Dallas,  211  ;  s.  c.  1  Yeates,  255. 
^  Steuart  v.  West,  1  Harris  &  Jobiison,  536. 

*  Peace  V.  Jones,  3  Murpbey,  256. 

^  Brancb  Bank  v.  Poe,  1  Alabama,  396  ;  Cottrell  v.  Yarnum,  5  Ibid.  229. 
Wyman  v.  Hicbborn,  6  Cusbing,  264. 

[393] 


CHAPTER    XXVI. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  HIS  HAVING  CO- 
DEBTORS,  AND  BY  THE  NUMBER  OF  THE  DEFENDANTS,  AND 
THE   NUMBER   OF   HIS    CREDITORS. 

§  652.  I.  Of  Jiis  liability  as  affected  hj  his  having  co- 
debtors.  Where  several  persons  are  jointly  and  sever- 
ally liable  for  a  debt,  any  one  of  them  may  be  gar- 
nished, and  subjected  to  a  judgment  for  the  whole 
amount  of  the  debt,  in  the  same  manner  that  he  might 
be  sued  by  the  defendant  without  his  codebtor  being 
joined  in  the  action.  But  it  is  unadvisable  in  any  case 
to  garnish  one  of  several  joint  and  several  debtors, 
without  joining  the  others,  if  practicable ;  for  a  payment 
by  one  not  garnished  will  certainly  discharge  the  lia- 
bility of  the  garnishee,  whether  made  before  or  after 
the  garnishment.  Thus,  where  it  appeared  that  the 
garnishee  and  another  had  executed  a  note  to  the  de- 
fendant promising  to  deliver  to  him  at  a  certain  time 
five  tons  of  hay,  and,  before  the  note  became  due,  one 
of  the  makers  was  -garnished,  and  afterwards,  when  it 
became  due,  the  other  maker  paid  it,  the  court  held 
this  payment  to  be  a  discharge  of  the  garnishee.^ 


^  Jevrett  v.  Bacon,  6  Mass.  60. 

[394] 


CH.  XXYI.]     garnishee's    LIABILITY   AS    A   DEBTOR.  §  555 

§  553.  Where  t\\o  or  more  persons  are  jointly  liable 
for  a  debt,  if  part  of  them  only  are  garnished,  they 
ma}^,  in  Massachusetts,  take  advantage  of  the  non- 
joinder in  abatement,  but  the  process  will  not,  because 
of  the  non-joinder,  be  considered  wholly  void.^  In  New 
Hampshire,  however,  where  one  was  summoned  as  gar- 
nishee, and  it  appeared  from  his  answer  that  he  was 
not  indebted  to  the  defendant  in  his  individual  capacity, 
but  as  a  partner  in  a  firm,  the  other  members  of  which 
were  not  joined  with  him  in  the  writ,  it  was  decided 
that,  because  of  the  non-joinder  of  the'  other  partner, 
the  garnishee  could  not  be  charged.^ 

§  554.  But  where  the  garnishees  were  partners  in  a 
firm,  part  of  the  members  of  which  resided  in  another 
State,  and  the  names  of  all  the  members  were  contained 
in  the  writ,  it  was  held  that,  as,  if  an  action  had  been 
broug-ht  against  them,  a  service  on  those  within  the 
jurisdiction  would  be  sufficient,  so  the  garnishment  of 
the  resident  partners  was  sufficient  to  hold  the  funds  of 
the  defendant  in  the  hands  of  the  firm:^ 

§  555.  And  in  all  such  cases,  as  well  where  the  co- 
debtors  not  summoned  reside  within  the  State,  and  the 
garitishees  do  not  object  on  that  account  to  answer,'*  as 
where  those  not  summoned  reside  out  of  the  State,^  if 


^  Hathaway  v.  Russell,  16  Mass.  473. 

-  Rix  V.  Elliott,  1  Kew  Hamp.  184  ;  Hudson  v.  Hunt,  5  Ibid.  538  ;  Atkins 
V.  Prescott,  10  Ibid.  120. 

^  Parker  u.  Danforth,  16  Mass.  299;  Atkins  v.  Prescott,  10  New  Hamp. 
120. 

*  Hathaway  v.  Russell,  16  Mass.  4  73. 

5  Parker  v.  Danforth,  16  Mass.  299. 

[305] 


§  556         garnishee's  liability  as  a  debtor,    [ch.  xxvl 

it  appear  by  tlie  answers  that  time  is  wanted  to  ascer- 
tain the  condition  of  the  funds,  or  the  HabiUty  of  any 
of  the  other  partners,  who  are  not  summoned,  on  ac- 
count of  any  acceptance  or  any  engagement  they  have 
entered  into,  or  of  any  suit  brought  against  them,  the 
process  will  be  stayed,  until  full  information  can  be 
obtained.^ 

§  556.  There  is,  however,  a  case  "which  constitutes 
an  exception  to  the  rule  that  resident  partners  may  be 
garnished  and  the  funds  in  the  hands  of  the  firm  there- 
by attached,  though  other  members  of  the  firm  reside 
in  another  State.  The  exception  is,  where  part  of  the 
firm  reside  in  this  country  and  part  in  a  foreign  coun- 
try. There  it  has  been  decided  that  the  resident  part- 
ners cannot  be  held  as  garnishees.  The  question  arose 
on  the  following  state  of  facts.  P.,  a  resident  of  Bos- 
ton, and  G.,  a  resident  of  Havana,  were  general  partners 
under  the  firm  of  P.  &  G.,  having  a  house  established 
and  doing  business  in  the  latter  city.  B.,  the  defend- 
ant, deposited  in  the  hands  of  G.,  at  Havana,  a  sum  of 
money,  taking  a  receipt  therefor  in  the  name  of  P.  & 
G.  Afterwards  P.  was  summoned  in  Boston  as  gar- 
nishee of  B.,  and  when  he  was  summoned  the  money 
still  remained  in  the  hands  of  G.,  at  Havana.  ♦The 
court  decided  that  P.  could  not  be  charged  as  garnishee, 
upon  the  following  grounds :  — 

"The  debt  from  the  house  to  B.,  was  contracted  in 
Havana,  and  was  there  to  be  accounted  for  according 
to  the  terms  of  the  receipt ;  and  it  would  be  attended 
•\vith  manifest   inconvenience  to  commercial  men,  if, 

^  Parker  v.  Danforth,  IG  Mass.  299  ;  Cusliing's  Trustee  Process,  §  92. 

[396] 


CH.  XXVI.]    garnishee's  liability  as  a  debtor.         §  557 

•when  they  have  received  property  on  credit  in  one 
country,  they  could  be  held  accountable  to  a  stranger 
in  another ;  when  the  terms  upon  which  they  received 
it  might  be  satisfied  abroad,  without  a  possibility  of 
showing  it  here. 

"  Besides,  their  creditor  abroad  may  have  the  means 
of  compelling  payment  in  the  country  where  the  con- 
tract was  made  ;  and  it  is  altogether  unknown  to  us, 
whether  a  judgment  of  this  court,  founded  on  this  pro- 
cess, would  be  respected  by  a  foreign  tribunal,  who 
might  have  perfect  evidence  of  the  existence  of  the 
debt,  without  any  satisfactory  proof  that  it  had  ever 
been  discharged. 

"  There  is  also  a  difficulty  in  considering  one  partner 
of  a  house  as  the  trustee,  when  the  other  partner  abroad 
may,  without  his  knowledge,  have  discharged  the  debt, 
or  come  under  some  liability  which  would  give  the 
house  an  equitable  lien  upon  it.  Debtors,  who  are  co- 
partners here,  must  all  be  svimmoned  and  made  parties 
to  the  suit.  It  is  true,  this  cannot  be  done  where  some 
of  them  have  become  domiciled  abroad.  But  this  diffi- 
culty will  suggest  doubts,  whether  a  house  so  circum- 
stanced can  be  lawfully  made  the  subjects  of  this  pro- 
cess. At  any  rate  when  the  debt  is  contracted  abroad, 
with  a  view  to  the  agency  of  the  foreign  partner,  or  an 
expectation  that  it  wdll  be  paid  or  negotiated  by  him, 
we  think  the  partner  at  home  cannot  be  charged  as 
trustee.-^ 

§  557.   II.    Of  his  liabilibj  as  affected  hj  the  number  of 
the  defendants,  and  the  number  of  his  creditors.     Where 


»  Kidder  v.  Packard,  13  Mass.  80. 

34  [397] 


§  558  garnishee's   liability   as   a   debtor.     [ciI.  XX vi. 

there  are  several  defendants,  the  property  of  each  is  of 
course  Hable  for  the  whole  debt.  In  such  case,  there- 
fore, if  it  appear  that  the  garnishee  is  indebted  to  one 
or  more  of  the  defendants,  though  not  to  all,  he  will  be 
charged.^  But  where  a  garnishee  is  indebted  to  several 
persons  jointly,  an  important,  and,  in  one  of  its  aspects, 
a  vexed,  question  arises,  whether,  in  respect  of  that 
indebtedness,  he  can  be  charged,  as  garnishee  of  part 
of  his  creditors.  This  question  will  be  considered  under 
two  heads :  I.  In  relation  to  Partnerships ;  and  II.  In 
relation  to  other  cases  of  joint  creditors  of  the  gar- 
nishee. 

§  558.  I.  Partnerships.  The  attachment  of  a  debt 
due  to  a  cojDartnership,  in  an  action  against  one  of  the 
partners,  is  justly  distinguishable  from  the  seizure  on 
attachment  or  execution  of  tangible  effects  of  the  firm 
for  the  same  purpose.  Hence  we  find  the  Supreme 
Court  of  Alabama  holding,  in  the  same  case,  that  part- 
nership ]3roperty  may  be  sold  to  pay  the  debt  of  one 
partner,  but  that  a  debt  due  to  a  firm  cannot  be  taken 
by  garnishment  for  that  purpose.  The  reason  assigned 
is,  that,  in  the  case  of  a  sale,  the  property  is  not  re- 
moved and  cannot  be  appropriated  until  all  liens  upon 
it  growing  out  of  or  relating  to  the  partnership,  are  dis- 
charged ;  while  in  the  other  case  the  judgment  against 
the  garnishee,  if  acquiesced  in,  changes  the  right  of 
property,  and  divests  the  copartner's  title  to  the  prop- 
erty attached ;  which  cannot  be  done  so  long  as  the 
partnership  accounts  remain  unsettled,  or  its  debts  un- 


1  Thompson  v.  Taj'lor,  13  Maine,  420  ;  Stone  v.  Dean,  5  New  Ilamp.  502; 
Tarkcr  v.  (Juillov/,  10  Ibid.  103  ;  Caignott  v.  Gilbaud,  2  Yeates,  35. 

[398] 


CH.  xxyl]    garnishee's  liability  as  a  debtor.         §  559 

paid.^  Much  force  is  given  to  this  reason,  when  it  is 
remembered  that  garnishment  is  essentially  a  legal  pro- 
ceeding, and  not  adapted  for  the  ascertainment  and 
settlement  of  equitable  rights  between  the  garnishee 
and  the  defendant ;  and  that  a  court  of  law  has  no 
power  to  impound  the  debt,  until,  by  an  adjustment  of 
all  the  partnership  affairs,  it  shall  appear  whether  the 
defendant  has  any  and  what  interest  in  the  general  sur- 
plus, or  in  the  particular  debt  so  impounded.^ 

§  559.  In  Massachusetts,  this  question  came  up  for 
decision  at  an  early  day,  and  the  court,  wdiile  deciding 
that  the  garnishee  could  not  be  charged,  intimated  that 
if  a  partner  of  the  firm  were  summoned,  and  disclosed 
that  the  defendant  had  an  interest  in  the  partnership 
effects  after  all  the  partnership  debts  were  paid,  the 
garnishee  might  be  held.^  There  are,  how^ever,  great 
and  apparently  insuperable  difficulties  in  the  way  of 
such  an  investigation,  which  will  immediately  occur  to 
the  legal  mind,  and  demonstrate  its  entire  impractica- 
bility. The  same  point  came  up  before  Justice  Story, 
on  the  circuit,  in  a  case  where,  in  a  suit  against  G.  & 
G.,  the  o;arnishee  answered  that  he  was  indebted  to  G. 
&  L.  J  one  of  the  defendants  being  a  member  of  both 
firms.  The  court,  in  deciding  against  the  liability  of 
the  garnishee,  observed  :  "In  order  to  adjudge  the  trus- 
tee responsible  in  this  suit,  it  must  be  decided,  that  the 
funds  of  one  partnership  may  be  applied  to  the  pay- 


^  Winston  r.  Ewing,  1  Alabama,  129. 
^  Johnson  v.  King,  6  Humphreys,  233. 

3  Fisk  V.  Ilerrick,  6  Mass.  271  ;  Upham  v.  Naylor,  9  Ibid.  490;  Ilawes  v. 
Waltham,  18  Pick.  451. 

[399] 


§  560         garnishee's  liability  as  a  debtor,    [ch.  xxvl 

ment  of  the  debts  of  another  partnership,  upon  the 
mere  proof  that  the  principal  debtor  has  an  interest  in 
each  firm.  If  this  be  correct,  it  will  follow  that  a  sepa- 
rate creditor  of  one  partner  will  have  greater  equitable, 
as  well  as  legal  rights,  than  the  partner  himself  has. 
The  general  rule  undoubtedly  is,  that  the  interest  of 
each  partner  in  the  partnership  funds  is  only  what  re- 
mains after  the  partnership  accounts  are  taken ;  and 
unless  upon  such  an  account  the  partner  be  a  creditor 
of  the  fund,  he  is  entitled  to  nothing.  And  if  the  j)art- 
nership  be  insolvent,  the  same  effect  follows."  ^ 

§  560.  In  Connecticut,  this  subject  was  elaborately 
and  ably  considered,  in  a  case  where  there  were  three 
members  of  a  firm  to  which  the  garnishee  was  indebted, 
and  he  was  garnished  in  a  suit  against  one  of  them. 
There  the  court  say,  —  "  The  creditor  can,  by  a  foreign 
attachment,  take  nothing  but  what  the  absconding 
debtor  was  entitled  to;  and  the  property  of  one  man 
ought  not  to  be  taken  to  pay  the  debt  of  another.  But 
the  rule  claimed  by  the  plaintiffs  would  violate  both 
these  principles.  It  is  well  known,  that  in  partnerships, 
the  effects  do-  not  usually  belong  to  the  partners 
equally,  in  proportion  to  the  number.  Sometimes,  one 
will  advance  the  capital,  which  is  to  be  returned,  while 
the  other  is  to  transact  the  business,  and  the  profits  only 
are  to  be  shared  between  them.  The  effects  might  be 
wanted,  not  only  to  pay  the  partnership  debts,  but,  on 
a  settlement  of  the  accounts,  the  partner  in  the  execu- 
tion might  be  a  debtor  of  the  partnership.     If,  then,  we 


^  Lyndon  v.  Gorham,  1   Gallison,  36  7.     And  see  Upliam  v.  Najlor,  9 
]\Iass.  490. 

[400] 


CH.  XXYT.]      GAKNISHEE'S    LIABILITY    AS    A    DEBTOR.  §  560 

consider  them  tenants  in  common,  and  permit  a  cred- 
itor to  sell  one  half  to  pay  the  separate  debt  of  one 
partner,  we  shall,  in  many  instances,  suffer  the  property 
of  one  man  to  be  taken  to  pay  the  debts  of  another ; 
and  give  to  a  separate  creditor  of  a  partner,  a  right  over 
the  effects  of  a  partnership,  which  such  partner  could 
not  exercise  ;  and  if  the  purchaser  should  be  allowed  to 
take  possession  of  the  effects,  he  might  dissolve  or  de- 
stroy the  partnership. 

"It  may  be  asked,  on  what  ground  could  the  judg- 
ment in  this  case  be  rendered  for  one  iJiinl  of  the  debt 
due  from  the  defendants  to  the  partnership,  of  which 
the  absconding  debtor  was  one  ?  There  was  no  evidence 
respecting  the  state  of  the  partnership  concerns ;  what 
capital  each  partner  advanced ;  what  each  owned ;  and 
whether  the  partnership  was  solvent.  Suppose  the 
whole  debt  due  from  the  garnishee  should  be"  wanted, 
to  pay  the  partnership  debts ;  or  that  the  defendant 
should  be  found  a  debtor,  on  settling  his  accounts ;  then 
the  judgment  could  not  be  right.  While  the  interest 
of  the  defendant  was  a  matter  of  uncertainty,  how  could 
a  judgment  be  rendered  for  a  sum  certain? 

"  It  is,  however,  insisted  that  the  garnishee  is  bound 
to  state  the  accounts  of  the  defendant  with  the  part- 
nership, and  ascertain  the  balance  due  to  the  defendant. 
But  this  would  be  to  require  an  impossibility ;  for  he 
has  no  control  of  their  books,  and  no  possible  legal  mode 
of  compelling  a  settlement  of  their  accounts. 

"  It  is  further  said,  if  the  plaintiffs  have  recovered 
more  than  the  proportion  of  the  defendant  in  this  debt, 
and  it  should  be  wanted  for  the  payment  of  partnership 
debts,  the  other  partners  may  call  them  to  account,  and 
recover  back  such  money.  At  this  rate,  a  judgment 
34*  [401] 


§  5G1  garnishee's    liability   as    a    debtor.      [cH.  XXVI. 

may  be  rendered  in  favor  of  a  man  for  a  smn  certain, 
with  a  liability  to  refund  the  whole,  or  a  part  of  it,  on 
some  contingency.  It  is  sufficient  to  state  the  proposi- 
tion, to  show  the  absurdity  of  it.  What  right  can  a 
court  have  to  say,  that  a  certain  part  of  a  debt  due  to  a 
partnership,  may  be  taken  to  pay  the  private  debt  of  a 
partner,  in  a  suit  where  the  partners  are  not  parties ; 
and  then,  if  wanted  to  pay  the  debts  of  the  partnership, 
to  oblige  them  to  resort  to  the  creditor  ? 

"But  it  further  appears  to  me,  from  the  nature  of 
partnerships,  that  one  partner  cannot  have  a  separate 
right,  in  any  particular  debt,  or  article  of  property,  be- 
longing to  the  partnership,  liable  to  his  individual  debt ; 
but  all  the  effects  are  a  joint  interest ;  and  each  partner 
can  have  a  separate  interest  only  in  his  share,  upon  the 
winding   up   and  settlement  of  the  partnership    con- 


» 1 


cerns. 

§  561.  The  position  taken  in  the  decisions  which 
have  been  referred  to,  is  supported  by  the  courts  of 
New  Hampshire,^  Louisiana,^  Mississippi,^  and  Ten- 
nessee.^ In  Pennsylvania,^  Maryland,^  and  South  Caro- 
lina,^ the  contrary  doctrine  prevails ;  but  in  the  reported 
cases  in  those  States  we  look  in  vain  for  any  substantial 
foundation  of  reason  or  expediency  ujDon  which  it  can 

^  Church  V.  Knox,  2   Conn.  514.     See  the  able  concurring  ojjinion  of 
Beaixard,  J.,  in  this  case. 

*  Atkins  V.  Prescott,  10  New  Hamp.  120. 

^  Smith  V.  Mc]Mickcn,  3  Louisiana  Annual,  319. 

*  Mobley  v.  Lonbat,  7  Howard  (Mi.)  318. 

*  Johnson  v.  King,  G  Humphreys,  233. 

«  M'Carty  v.  Emlcn,  2  Dallas,  277;  s.  c,  1  Ycatcs,  190. 
'  Wallace  v.  Patterson,  2  Plarris  &  M'Henry,  463. 

*  Schatzill  r.  Eolton,  2  M'Cord,  478 ;  Chatzel  c.  Bolton,  3  Ibid.  33. 

[402] 


CH.  XXVI.]    garnishee's  liability  as  a  debtor.         §  563 

rest,  or  for  any  views  calculated  to  shake' our  confidence 
in  the  conclusion  that  partnership  credits  can  in  no  case 
be  taken  by  garnishment  to  pay  the  individual  debt  of 
one  member  of  a  firm. 

§  5G2.  II.  Other  cases  of  Joint  creditors  of  the  garnishee. 
An  interesting  question  arises  as  to  the  liability  of  a 
garnishee,  where  he  is  indebted  to  two  persons  jointly, 
and  is  summoned  as  garnishee  of  one  of  them,  when  his 
joint  creditors  are  not  partners.  This,  it  w^ill  be  per- 
ceived, is  a  different  case  from  that  we  have  been  con- 
sidering, and  may  be  sustained  on  principle. 

§  563.  In  Maine,  the  following  case  arose.  A.  and  B. 
contracted  with  C,  to  cut  and  haul  lumber,  and  vrent 
on  with  the  performance  of  the  contract ;  and  C,  at  the 
time  of  the  garnishment,  was  indebted  to  them  jointly 
in  a  certain  sum  of  money.  The  question  was  whether, 
in  respect  of  that  debt,  C.  could  be  charged  as  garnishee 
of  A.  alone ;  and  the  court  said,  —  "  The  alleged  trus- 
tees in  this  case  are  the  holders  of  funds,  of  which  the 
principal  debtor,  (the  defendant,)  is  entitled  to  a  moiety. 
The  defendant  has  it  not  in  his  power,  without  joining 
the  party  entitled  with  him,  by  any  coercive  process,  to 
compel  payment.  The  principal  reason  for  the  neces- 
sity of  this  joinder  usually  given  is,  that  otherwise  the 
party  indebted  might  be  liable  to  the  cost  and  incon- 
venience of  two  suits  upon  one  contract.  Hence  if  he 
himself  sever  the  cause  of  action,  by  paying  one  of  his 
joint  creditors  his  proportion,  he  is  liable  to  the  several 
creditor.  So,  the  law,  in  carrying  out  its  remedial  pro- 
visions, may  sever  a  contract,  so  as  to  subject  the  debtor 
to  the  liability  of  two  suits  upon  one  contract.     The 

[403] 


§  564  garnishee's   LLIBILITY   as   a   debtor.     [cH.  XXVI. 

death  of  one  of  two  jointly  contracting  parties,  renders 
the  survivor  and  the  administrator  of  the  deceased  party 
each  Hable  to  a  several  suit.  So,  if  the  trustee  be  in- 
debted to  the  principal  in  an  entire  sum,  beyond  the 
amount  wanted  to  satisfy  the  judgment  recovered  by 
the  attaching  creditor,  he  w^ill  remain  liable  to  the  ac- 
tion of  his  principal  for  the  residue.  The  trustee  is  but 
a  stakeholder ;  and  the  law  indemnifies  him  for  the  ex- 
pense of  the  suit,  by  allowing  him  to  deduct  it,  as  a 
charge  upon  the  fund  in  his  hands.  Notwithstanding,  ^ 
therefore,  if  the  trustees  are  charged  in  this  case,  an 
entire  liability  will  thereby  be  divided  into  two  parts, 
in  the  judgment  of  the  court  this  objection  cannot  pre- 
vail." ^  In  Missouri,  the  same  point  w^as  decided  in  a 
case  where  the  garnishee  was  the  maker  of  a  note  pay- 
able to  two  jointly ;  but  the  court  do  not  give  at  large 
the  reasons  for  their  decision.^ 

§  564.  The  same  result  was  arrived  at  in  Massachu- 
setts, in  a  case  where  the  garnishees  had  in  their  pos- 
session money  belonging  to  A.  &  B.,  joint  owners  of  a 
ship,  the  proceeds  of  the  sale  of  a  cargo  of  silks,  and 
were  garnished  in  an  action  against  B.  It  was  objected 
that  the  garnishees  were  not  liable,  because  the  money 
in  their  hands  w^as  the  joint  property  of  A.  &  B.  On 
this  point  the  court  say,  —  "this  depends  upon  the 
question  whether  A.  &  B.  are  copartners ;  if  they  are, 
the  objection  is  well  taken,  as  was  decided  in  the  cases 
of  Fisk  V.  Herrick,  6  Mass.  271,  and  Upham  v.  Nay  lor,  9 
Mass.  490.     These  cases,  however,  relate  to  copartner- 


^  Whitney  v.  Munroe,  19  Maine,  42. 
'  jNlillcr  I'.  Richardson,  1  Missouri,  310. 

[404] 


CH.  XXVI.]    garxishee's  liability  as  a  debtor.         §  564 

ships,  properly  so  called,  and  not  to  mere  tenancies  in 
common  or  joint  ownerships  of  personal  property;  and 
the  reason  is  that  no  one  partner  can  have  any  separate 
interest  in  a  copartnership  debt,  if  he  himself  is  indebted 
to  the  copartnership  to  an  amount  which  will  absorb 
his  proportion ;  so  that  his  share  shall  not  be  taken, 
until  it  shall  be  made  to  appear  that  it  is  free  from  the 
lien  of  the  other  partners.  But  it  is  not  so  with  tenants 
in  common  of  a  ship,  or  joersons  jointly  interested  in  a 
cargo,  they  not  being  partners,  for  they  have  no  lien 
upon  each  other's  share,  and  are  not  answerable  for 
eacli,  other's  debts.  And  this  has  been  settled  in  seve- 
ral cases  similar  to  the  one  before  us. 

"  Now  what  is  the  interest  of  B.  in  the  funds  in  the 
hands  of  the  garnishees  ?  A.  &  B.  were  the  owners  of 
a  ship,  and  concerned  together  in  a  voyage.  It  is  to  be 
presumed  that  each  furnished  his  share  of  the  outward 
cargo.  The  ship  brings  home  silks,  which,  by  reason  of 
A.  &  B.  being  ship-owners,  become  their  property. 
They  are  tenants  in  common  until  the  property  is  di- 
vided. When  sold,  they  have  the  same  interest  in  the 
proceeds.  Neither  can  claim  more  than  his  share  on 
account  of  debts  due  from  the  other.  They  have  no 
lien.  The  consequence  is,  that  a  creditor  of  either  may 
attach  a  moiety,  and,  when  sold  by  a  factor,  though  he 
may  discharge  himself  by  payment  to  either,  if  they 
united  in  the  deposit,  he  is  nevertheless  debtor  to  each, 
and  is  answerable  to  the  creditor  of  each  when  the 
funds  are  attached  in  his  hands."  ^ 


1  Thorndike  v.  DeWolf,  6  Pick.  120. 

[405] 


§  565         garnishee's  liability  as  a  debtor,    [ch.  xxvl 

§  565.    There  is  in  Massachusetts  a  later  case  which 
might  seem  to  m'ihtate  against  this  doctrine,  and  there- 
fore demands  notice.^     A.  &  B.  contracted  with  a  town 
to  erect  a  barn  and  do  some  other  work  for  a  stipulated 
compensation.     After  the  work  was  done,  the  town  was 
garnished  in  two  suits  against  B.,  and  in  its  answers  dis- 
closed its  indebtedness  to  A.  &  B.  jointly,  and  judgments 
were  rendered  against  it  in  respect  of  B.'s  share  of  the 
debt.     Afterwards  A.  &  B.  joined  in  an  action  against 
the  town,  and  the  judgments  rendered  against  the  town, 
as  garnishee  of  B.,  were  set  up  in  bar  p-o  tanto  of  the 
recovery.     The  court,  after  referring  to  the  garnish- 
ments, saj^,  —  "In  each  of  those  suits  the  town  was 
charged,  and  a  portion  of  the  debt  due  to  the  plaintiffs 
jointly,  was  thus  adjudged  liable  to  be  appropriated  by 
process  of  law,  to  the  payment  of  the  several  debt  of 
one  of  them.     This,  we  think,  was  erroneous.     It  seems 
to  be  now  settled  by  authorities,  that  a  joint  debt  can- 
not thus  be  severed  and  appropriated,  in  whole  or  in 
jDart,  to  discharge  the  several  debt  of  one."     In  support 
of  this  broad  and  general  proposition,  the  court  refer 
to  cases  already  herein  considered,  of  attaching  part- 
nership credits  for  the  debt  of  part  of  the  firm,  and  then 
j)roceed  with  remarks  which  apply  only  to  such  a  case. 
The  case  before  the  court  is  evidently  treated  as  one 
of  partnership ;   and  the  court  conclude  their  opinion 
on  this  branch  of  the  controversy  with  these  words,  — 
"  it  appears,  by  the  answers  of  the  town  that  they  were 
indebted  to  the  two  jointly,  ivithout  any  thing  further  aj)- 
fearing.     In  such  a  case  the  court  are  of  opinion  that 

—    ■  .^ 

^  Ilawes  V.  Waltham,  18  Tick.  451. 

[  406  ] 


CH.  XXVI.]    garnishee's  liability  as  a  debtor.         §  565 

they  could  not  be  charged,  in  a  suit  against  one  only." 
We  are  left  to  the  conclusion  that,  if  it  had  appeared  to 
the  court  that  the  debt  had  been  due  to  A.  &  B.  jointly, 
but  not  as  partners,  the  decision  might  have  been  other- 
wise. Whether,  however,  the  court  intended  to  give 
such  an  intimation,  or  not,  it  is  quite  certain  that  the 
question  of  the  liability  of  a  garnishee  under  such  cir- 
cumstances, was  not  passed  upon  by  the  court. 

[407] 


CHAPTEK   XXVII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  THE  WANT  OF 
PRIVITY  OF  CONTRACT  OR  OF  INTEREST  BETWEEN  HIM  AND  THE 
DEFENDANT. 

§  566.  We  have  heretofore  considered  fhis  subject  in 
connection  with  the  garnishee's  liabiUty  for  property  of 
the  defendant  in  his  hands,  and  in  doing  so,  reference 
to  cases  which  might  more  properly  have  been  exam- 
ined here,  was  unavoidable.  The  reader,  therefore,  is 
referred  to  Chapter  XX.,  in  order  to  avoid  repetition. 
[408] 


CHAPTER   XXYIII. 

THE    garnishee's   LIABILITY   AS   A   PARTY   TO    A   PROMISSORY 

NOTE. 

§  567.  Vaeious  questions  of  interest  arise  in  the  con- 
sideration of  this  branch  of  our  subject.  The  attempt 
to  subject  the  maker  of  a  promissory  note  to  garnish- 
ment, in  a  suit  against  the  payee,  necessarily  brings  to 
light,  in  some  of  its  aspects,  serious  difficulties.  Princi- 
pal among  these  is  the  danger  that  the  maker,  if  sub- 
jected as  garnishee,  may,  without  any  fault  on  his  part, 
be  compelled  to  pay  the  amount  of  the  note  a  second 
time.  That  such  a  result  is  possible,  is  enough  in  itself 
to  give  importance  to  our  present  inquiries.  The  sub- 
ject will  be  considered,  first,  in  regard  to  unnegotiable 
notes,  and  secondly,  with  reference  to  negotiable  notes. 

§  568.  I.  JJnncgotiaUe  Notes.  By  notes  of  this  de- 
scription are  meant  all  notes  which  are  not  governed 
by  the  law  merchant.  Usually  the  maker  is  entitled  to 
every  defence  against  the  payee,  arising  at  any  time 
before  he  receives  notice  of  the  assignment  of  the  note. 
In  some  States,  however,  he  can  interpose  between 
himself  and  a  hond  fide  assignee,  no  defence  which  arose 
after  the  assignment  was  in  fact  made,  though  he  had 
no  knowledge  of  its  having  been  made. 

•     35  [409] 


§  570         garnishee's  liability  as  a  debtor,  [ch.  xxviil 

§  569.  Wherever  notice  of  an  assignment  is  required 
to  be  given  by  the  assignee  to  the  maker,  there  can  be 
•  no  good  reason  why  the  latter  should  not  be  held  as 
garnishee  of  the  payee,  at  any  time  before  he  receives 
such  notice ;  but  on  the  contrary  unquestionable  rea- 
sons why  he  should.  He  is  indebted  to  the  payee  by 
written  promise,  and  if  in  respect  of  that  indebtedness 
he  be  charged  as  garnishee,  he  is  in  no  sense  injured 
thereby,  for  no  assignment  made  after  he  is  garnished, 
can  prevent  his  setting  up  as  a  defence  against  the 
note  in  the  assignee's  hands,  his  payment  as  garnishee, 
even  though  the  assignee  acquired  title  hond  fide,  and 
was  ignorant  of  the  garnishment.^  In  such  case  the 
laches  of  the  assignee  occasions  his  loss. 

§  570.  When  the  maker  of  an  unnegotiable  note  is 
thus  garnished,  if  he  have  received  notice  of  an  assign- 
ment of  the  note  made  before  the  garnishment,  he 
should  state  it  in  his  answer ;  or  if  he  be  afterward  no- 
tified of  such  antecedent  assignment,  in  time  to  amend 
his  answer  before  judgment  is  rendered  thereon,  he 
should  make  it  known  to  the  court ;  and  if  he  fails  to 
do  so,  he  cannot  avail  himself  of  the  payment  of  the 
judgment  rendered  against  him  as  garnishee,  in  defence 
to  an  action  brought  by  the  assignee.^  So  if  he  have 
been  sued  on  the  note  by  persons  styling  themselves 
assignees.^     And  it  matters  not  whether  the  informa- 


^  Dore  V.  Dawson,  G  Alabama,  712;  Comstock  v.  Farniim,  2  Mass.  9C  ; 
Clark  V.  King,  Ibid.  524.  In  Alabama  no  notes  are  recognized  as  governed 
by  the  princiijles  of  the  law  merchant,  but  such  as  are  made  pa}-ablc  in  Bank. 

-  Cray  ton  v.  Clark,  11  Alabama,  787;  Foster  v.  White,  9  Porter,  221 5 
Colvin  V.  llich,  3  Ibid.  1 75. 

3  Stubblefield  v.  Ilagcrty,  1  Alabama,  38. 

[410] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.         §  572 

tion  he  has  received  of  an  assignment  be  in  fact  true 
or  false  ;  it  is  equally  his  duty  to  make  it  known  in  his 
answer.-^  And  if  the  garnishee,  at  any  time  before  pay- 
ment of  the  judgment  against  him,  receive  notice  of  an 
assignment  made  before  he  was  garnished,  and  fail  to 
take  proper  steps  to  prevent  payment  of  the  judgment, 
it  is  said  that  such  payment  will  be  in  his  own  wrong, 
and  will  constitute  no  valid  defence  to  the  claim  of  the 

2 

§  571.  These  rules  apply  with  equal  force  Vvdiere,  as 
at  the  common  law,  no  action  can  be  maintained  on 
such  notes  except  in  the  name  of  the  payee,  and  where, 
as  in  many  States,  the  assignee  is  authorized  by  statute 
to  sue  in  his  own  name.  In  the  latter  case,  the  assignee 
is  invested  with  a  legal  right,  which  he  may  enforce  by 
an  action  at  law,  and  it  is  therefore  complete.  In  the 
former,  the  right  is  merely  equitable,  and  not  suscepti- 
ble of  enforcement  by  the  assignee  in  his  own  name, 
except  in  a  court  of  equity ;  but  it  is  none  the  less,  in 
this  proceeding,  entitled  to  the  protection  of  the  courts, 
which  with  great  uniformity  have  sustained  equitable 
assio-nments  against  attachment  for  the  debts  of  as- 
signors.^ 

§  572.  What  will  be  a  sufficient  statement  of  an 
assignment  in  the  answer  of  a  garnishee,  must  depend, 
to  ^ome  extent,  upon  the  force  given  to  the  answer 


^  Foster  v.  Walker,  2  Alabama,  177;  Wicks  v.  Branch  Bank,  12  Ibid. 
594. 

«  Oldham  v.  Ledbetter,  1  Howard  (MI.)  43. 
3  See  Chapters  XXIII.  and  XXXL 

[411] 


§  573         garnishee's  liability  as  a  debtor,  [ch.  XXVIII. 

under  the  system  of  practice  in  each  State.  In  Massa- 
chusetts, when  the' garnishee's  habihty  was  determined 

•  solely  by  his  answer,  and  no  extrinsic  evidence,  tending 
either  to  fix  or  defeat  his  liability,  could,  even  with  the 
consent  of  plaintiff,  defendant,  and  garnishee  be  intro- 
duced, it  was  held  that  the  assignee,  in  order  to  avail 
himself  of  the  assignment,  must  exhibit  to  the  gar- 
nishee, before  he  is  examined,  satisfactory  evidence  of 
a  legal  assignment,  made  before  the  attachment,  in 
order  that  the  garnishee  may,  in  his  answer,  lay  the 

,  evidence  before  the  court.^  The  same  rule  prevails  in 
Maine.^  Hence,  if  such  evidence  be  produced  to  the 
garnishee,  and  embodied  in  his  answer,  it  follows  that 
he  cannot  be  charged,  though  it  appear  that  the  payee 
sold  the  note  for  the  express  purpose  of  absconding  and 
defrauding  his  creditors.^ 

§  573.  Where,  however,  as  is  generally  the  case,  the 
answer  of  the  garnishee  may  be  controverted  and  dis- 
proved ;  and  more  especially  v/here,  if  the  answer  sets 
up  an  assignment  of  the  note,  the  supposed  assignee 
may  be  cited  into  court,  and  required  to  substantiate 
the  assignment ;  it  cannot  be  considered  necessary  for 
the  garnishee  to  set  forth  in  his  answer  the  evidence  of 
the  assimment :  it  will  be  sufficient  for  him  to  state 

o 

that  he  has  received  notice  of  it.  And  when  he  so 
states,  no  judgment  can  be  rendered  against  him  on  the 
ansivcr,  whether  the  information  he  has  received  of  the 


1  Foster  v.  Sinkler,  4  Mass.  450  ;  Wood  v.  Partridge,  11  Ibid.  488. 

2  McAllister  v.  Brooks,  22  Maine,  80. 

*  Newell  i\  Adams,  1  D.  Cliipman,  34 G  ;  Ilutcliins  v.  Ilawlcy,  9  Vermont, 
295  ;  Burke  v.  Whitcomb,  13  Ibid.  421. 

[412] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.         §  574 

assignment  be  true  or  false.  If  the  plaintiff  suppose 
the  notice,  or  the  garnishee's  statement  of  it  to  be  false, 
the  answer  should  be  contested,  and  if  not  contested, 
the  garnishee  must  be  discharged  ;  for  it  not  only  does 
not  appear  that  he  is  indebted  to  the  defendant,  but 
the  answer  shows  indebtedness  to  the  assignee.^ 

§  574.  In  the  class  of  cases  to  which  we  have  at- 
tended, it  will  be  seen  that  the  fact  of  notice  to  the 
maker,  of  the  assignment,  is  of  first  importance.  But 
where,  as  in  some  States,  the  assignment  of  a  note  is 
2}e7'  se  operative  and  effectual,  and  no  notice  to  the 
maker  is  required,  how  is  the  maker  to  be  charged  as 
garnishee  of  the  payee,  without  liability  to  a  second 
payment  to  the  assignee  ?  If,  ignorant  of  any  assign- 
ment, he,  in  his  answer,  admit  an  indebtedness  to  the 
defendant,  and  judgment  be  rendered  against  him,  and 
afterward  an  assignee  of  the  note,  under  an  assignment 
made  before  the  attachment,  claim  its  payment,  can  it 
be  resisted  ?  Shall  the  assignee  be  prejudiced  by  a 
proceeding  to  which  he  was  no  party,  and  of  which  he 
was  ignorant  ?  Or,  shall  he  be  required  to  give  notice 
of  the  assignment,  in  order  to  prevent  his  money  from 
being  taken  to  pay  another's  debt,  when  the  law  vests 
the  title  fully  in  him,  without  the  necessity  of  such  no- 
tice ?  On  the  other  hand,  shall  the  garnishee  be  com- 
pelled to  pay  twice  ?  These  inquiries  serve  to  illustrate 
the  difficulty  of  charging  the  maker  of  a  note  which, 
though  not  negotiable  by  the  law  merchant,  may  yet 
be  assigned  without  notice  to  the  maker,  so  as  to  cut 


1  Colviu  V.  Rich,  3  Portei-,  175  ;  Foster  v.  White,  9  Ibid.  221  ;  Foster  v. 
Walker,  2  Akibama,  177  ;  Wicks  v.  Branch  Bank,  12  Ibid.  594. 

35=^  [413] 


§575         garnishee's  liability  as  a  debtor,  [ch.  xxvm. 

off  any  defence  lie  might  have  against  the  payee,  arising 
after  the  assignment,  and  before  he  comes  to  the  knowl- 
edge of  it.  This  difficulty  was  experienced  by  the  Su- 
preme Court  of  Missouri,  at  a  time  when  the  statute 
(since  changed)  gave  the  maker  of  an  mmegotiable 
note  a  right  of  defence  against  the  assignee,  only  in 
respect  of  matters  which  existed  prior  to  the  assign- 
ment ;  and  led  that  court  to  the  only  safe  conclusion, 
that  such  notes,  as  regards  liability  to  attachment,  must 
be  regarded  as  on  the  same  footing  wdth  negotiable 
paper.^ 

§  575.  The  cases  previously  cited  refer  altogether  to 
notes  executed  within  the  States  where  the  decisions 
were  made.  A  question  of  some  interest  is  presented 
where  the  maker  of  a  note  given  or  negotiated  in  a 
State  where  it  is  held  to  be  negotiable,  is  garnished  in 
a  State  where  the  same  note  would  be  considered  unne- 
gotiable.  It  has  been  ruled  that  the  character  of  the 
note,  with  reference  to  this  proceeding,  must  be  deter- 
mined by  the  law  of  the  State  wdiere  it  was  given  or 
negotiated ;  and  that  if  negotiable  there,  the  maker  will 
not  be  charged  as  garnishee  of  the  payee.  Thus  where 
A.,  having,  in  Massachusetts,  executed  a  negotiable  note, 
payable  there  to  B.,  was  summoned  in  Vermont  as  B.'s 
garnishee,  where  the  note  would  not  be  considered  ne- 
gotiable, it  was  held  that,  inasmuch  as  it  was  by  the 
lex  loci  contractus  negotiable,  and  therefore  not  attacha- 
ble, it  could  not  be  attached  in  Vermont  by  garnishing 
the  maker.^ 


^  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  IMissonri,  416. 
-  Baylies  v.  Houghton,  15  Yermont,  G26. 

[414] 


en.  XXVIII.]  garnishee's  liability  as  a  debtor.        §  578 

§  576.  So,  where  A.  executed  in  Pennsylvania,  and 
delivered  to  B.,  in  New  York,  a  promissory  note,  which, 
by  the  law  of  the  former  State  was  luinegotiable,  but 
by  that  of  the  latter  was  negotiable,  and,  before  the 
note  became  due,  A.  was  summoned  as  garnishee  of  B., 
it  was  held  that  thouo;h  the  note  was  drawn  in  Penn- 
sylvania,  it  was  delivered  and  took  effect  in  New  York, 
and  was  liable  to  the  law  of  that  State,  which  gave  it 
the  effect  of  a  foreign  bill  of  exchange,  and  therefore 
the  maker  was  exempted  from  garnishment  on  account 
of  the  payee.-^ 

§  577.  II.  NegotiaUe  Notes.  Any  difficulties  which, 
under  any  system,  attend  the  garnishment  of  the  maker 
of  an  lumegotiable  note,  in  an  action  against  the  payee, 
are  trivial  compared  with  those  which  beset  a  like  at- 
tempt in  the  case  of  a  negotiable  note ;  no  notice  of 
the  transfer  of  which  is  necessary,  and  which  is  intended 
to  pass  from  hand  to  hand  as  cash  ;  each  holder,  before 
its  maturity,  feeling  himself  secure,  and  entitled  to  be 
secure,  against  any  defence  which  the  maker  might 
have  against  the  payee.  The  injurious  and  anomalous 
results  of  subjecting  such  paper  to  attachment,  have 
led,  in  some  States,  to  its  express  exception,  by  statute, 
out  of  the  operation  of  the  process.  In  States  where 
the  statutes  are  silent  on  this  point,  the  courts  have  dif- 
fered in  their  views. 

§  578.  It  is  difficult  to  perceive  any  substantial  jus- 
tification of  such  a  proceeding ;  while,  obviously,  it  dis- 


^  Ludlow  I".  Bingham,  4  Dallas,  47. 

[415] 


§  580        garnishee's  liability  as  a  debtor,  [ch.  xx\^ii. 

regards  principles  which,  by  general  consent,  have 
been  laid  at  the  'foundation  of  all  attempts  to  subject 
garnishees  to  liability.  It  cannot  be  without  benefit  to 
recur  to  those  principles  in  this  connection.  1.  With- 
out dissent,  it  is  impossible  to  charge  a  garnishee  as  a 
debtor  of  the  defendant,  unless  it  appear  affirmatively 
that,  at  the  time  of  the  garnishment,  the  defendant  had 
a  cause  of  action  against  him,  for  the  recovery  of  a 
legal  debt,  due,  or  to  become  due  by  the  efflux  of  time. 

2.  The  attachment  plaintiff  can  hold  the  garnishee  re- 
sponsible, (except  in  some  few  cases  which  have  been 
referred  to,  and  have  no  application  here,)  only  so  far 
as  the  defendant  might  hold  him  by  an  action  at  law. 

3.  The  garnishee  is,  under  no  circumstances,  to  be 
placed  by  the  garnishment  in  a  worse  condition  than  he 
would  otherwise  be.  4.  No  judgment  should  be  ren- 
dered against  him  as  garnishee,  where  he  answers  fairly 
and  fully,  unless  it  would  be  available  as  a  defence 
against  any  action  afterwards  brought  against  him  on 
the  debt  in  respect  of  which  he  is  charged. 

§  579.  Applying  these  well-established  principles  to 
this  subject,  it  would  seem  quite  impracticable  to 
charge  the  maker  of  a  negotiable  promissory  note,  as  a 
garnishee  of  the  payee,  so  long  as  the  note  is  still  cur- 
rent as  negotiable  paper.  This  character  it  bears  until 
it  becomes  due ;  and  no  operation  which  can  be  given 
to  the  garnishment  of  the  maker,  can  change  its  nature 
in  this  respect. 

§  580.  While  the  note  is  current  as  negotiable  paper, 
it  is  usually  very  difficult  for  the  maker  to  say,  whether, 
at  the  time  of  the  e:arnisliment,  it  was  still  the  property 
[410] 


CH.  XXYIIl.]    garnishee's    LIABILITY    AS    A    DEBTOR.  §  i^Sl 

or  in  the  possession  of  the  payee.  If  he  answers  that 
he  does  not  know  whether  it  was  so  or  not,  certainly 
he  should  not  be  charged,  because  it  does  not  ajjpear 
affirmatively  that  he  was,  when  garnished,  indebted  to 
the  defendant.  The  most  that  can  be  claimed  is, 
that  he  imuj  be  so  indebted,  which  is  manifestly  insuffi- 
cient. The  great  fact  necessary  to  charge  him  is  not 
shown,  but  only  conjectured.  The  whole  matter  is  in 
doubt ;  and  while  in  doubt  the  court  cannot  with  truth, 
record  that  the  garnishee  is  found  to  be  indebted  to 
the  defendant;  and  unless  that  be  found  by  the  judg- 
ment of  the  court  there  is  no  ground  for  charging  the 
garnishee. 

§  581.  This  difficulty  is  not  removed  by  resorting  to 
the  presumption  that  the  debt,  being  shown  to  have 
once  existed,  still  exists.  Presumptions  of  that  descrip- 
tion are  founded  on  the  experienced  continuance  or  per- 
manency of  a  state  of  things,  or  a  relation,  which  is 
found  to  have  once  existed.  They  are  available  only 
so  far  as  experience  shows  the  state  of  things,  or  the 
relation,  likely  to  continue.  When  it  is  shown  that  ihe 
nature  of  the  subject  is  inconsistent  with  the  presumption, 
the  presumption  cannot  arise.  When,  therefore,  it  ap- 
pears that  a  garnishee,  before  he  was  summoned,  made 
a  negotiable  note  to  the  defendant,  no  presumption 
arises  that  he  was,  when  garnished,  a  debtor  of  the  de- 
fendant, in  respect  of  that  note,  because  the  negotiable 
character  of  the  note  is  given  to  it  for  the  very  purpose 
of  its  being  negotiated,  and  experience  teaches  that 
such  notes  are  not  usually  held  by  the  payees  until 
maturity,  but  are  the  subjects  of  incessant  transfers  by 
indorsement  and  delivery. 

-         .  [^IT] 


§  584         garnishee's  liability  as  a  debtor,  [ch.  xxviil 

§  582.  But  tlioiigli  the  garnishee  should  answer  that 
the  defendant,  a*t  the  time  of  the  garnishment,  was  the 
owner  of  the  garnishee's  note,  not  then  due,  no  judg- 
ment should  be  rendered  against  him,  because  Jiis  ohliga- 
tlon  18  not  to  iKiy  to  any  imrtkiilar  person,  hid  to  the  holder, 
at  maturity,  whoever  he  may  he}  Can  the  garnishee,  or  the 
defendant,  or  the  court,  say  that  the  defendant  will  be 
the  holder  of  the  note  at  its  maturity  ?  Certainly  not ; 
and  yet  to  give  judgment  against  the  garnishee,  neces- 
sarily assumes  that  he  will  be ;  or,  in  disregard  of  the 
contrary  probability,  holds  the  garnishee  to  a  responsi- 
bility which  he  may  have  to  meet  again  in  an  action 
by  a  hond  fide  holder  at  maturity. 

§  583.  It  results  hence  that  no  such  judgment  can 
be  rendered,  without  placing  the  garnishee  in  a  worse 
situation  than  he  would  otherwise  be  in,  by  requiring 
him  to  pay  to  the  plaintiff  money  w^hich  he  may,  and 
probably  will,  afterwards  be  compelled  to  pay  again  to 
an  innocent  holder  of  the  note.  It  is  no  answer  to  this 
to  say  that  he  may  not  be  compelled  to  pay  a  second 
time ;  for  the  presumption  from  the  character  of  the 
paper  is  the  other  way ;  and  the  mere  liability  to  such 
second  payment  is  sufficient  to  place  him  in  a  worse 
condition  than  he  would  otherwise  be.  The  only  way 
to  avoid  this  is  to  give  the  garnishment  the  effect  of 
destroying  the  negotiability  of  the  note  ;  a  proposition 
which  bears  on  its  face  its  own  condemnation. 

§  584.   Finally,  this  proceeding  cleajly  violates  the 


^  Sheets  V.  Culver,  14  Louisiana,  4-19  ;  Kimball  r.  Plant,  Ibid.  511. 

[418] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.         §  08 5 

undoubted  principle  that  no  judgment  can  properly  be 
rendered  against  a  garnisliee,  ayIio  fully  and  truly  an- 
swers, unless  it  will  avail  liim  as  a  defence  against  any 
one  who  afterwards  attempts  to  recover  the  same  debt 
from  him  hy  action.  This  important  rule  can  in  no 
case  be  dispensed  with,  without  manifest  injustice  to 
the  garnishee.  It  is  not  sufncient  that  the  garnishee 
ma^/  be  protected ;  it  is  the  duty  of  the  court,  with  the 
whole  case  before  it,  to  ascertain  whether  its  judgment 
will  be  effectual  to  that  end ;  and  if  it  do  not  appear 
that  it  will,  it  should  not  be  given.  Manifestly,  then, 
in  this  case,  no  judgment  should  be  given  against  the 
garnishee,  because  it  will  not  avail  him  as  a  defence  to 
a  suit  by  a  bond  fide  holder,  who  acquires  title  to  the 
note  before  its  maturity.  He  is  no  party  to  the  judg- 
ment ;  his  rights  are  not  passed  upon  by  the  court ;  and 
it  is  simply  absurd  to  claim  that  he  is  concluded  or  af- 
fected by  the  judgment.  And  y^i  no  court  can  consist- 
ently sustain  the  attachment  of  negotiable  paper,  while 
it  is  still  current,  without  claiming  for  its  judgment  con- 
clusive effect  in  favor  of  the  garnishee  against  all  the 
world,  —  in  which  case  a  hond  fide  holder  may  lose  the 
amount  of  the  note,  —  or  leaving  the  door  open  for  the 
garnishee  to  be  compelled  to  pay  the  same  debt  a  sec- 
ond time. 

§  585.  The  onlj^  expedient  which  has  yet  been  sug- 
gested for  avoiding  the  difficulties  attending  the  gar- 
nishment of  the  maker  of  a  negotiable  note  while 
current,  originated  with  the  Supreme  Court  of  Missouri; 
by  which  it  is  held  that  an  indorsee,  having  no  notice 
of  the  attachment,  may  recover  back  from  the  attach- 
ment plaintiff  the  amount  recovered  by  him  from  the 

[419] 


§  586         garnishee's  liability  as  a  debtor,  [ch.  xxyiil 

maker,  as  garnishee  of  the  ^^ayee.^  AYhile  it  is  admitted 
that  this  at  least  should  be  done  for  an  indorsee  nnder 
such  circumstances,  by  the  court  which  has  arbitrarily 
seized  upon  his  property,  various  inquiries  at  once 
arise.  Why,  and  by  what  authority,  is  the  legal  re- 
course of  the  indorsee  against  the  maker  of  the  note 
thus  summarily  cut  off  without  his  knowledge  or  con- 
sent? By  what  rule  or  precedent  is  a  judgment  to 
which  he  was  no  party,  and  of  which  he  had  no  notice, 
interposed  between  him  and  his  debtor  ?  Upon  what 
principle  of  lavv',  or  justice,  or  right,  is  his  property  con- 
fiscated and  appropriated  to  pay  the  debt  of  another  ? 
What  right  has  any  court,  against  his  will,  to  destroy 
his  relation  of  creditor  to  the  maker  of  the  note,  and 
constitute  him  a  creditor  of  a  stranger?  What  justice 
is  there  in  compelling  him  to  follow,  perhaps  to  a  dis- 
tant State,  the  attachment  plaintiff,  to  recover  hy  legal 
resort  that  which  the  maker  would  have  paid  at  home 
without  such  resort,  if  he  had  not  been  garnished  ?  And 
when  he  seeks  in  a  distant  forum  to  enforce  his  claim 
against  the  attachment  plaintiff,  what  guaranty  is  there 
that  his  right  will  be  recognized  ?  Until  these  ques- 
tions are  satisf^ictorily  answered,  consistently  with  es- 
tablished principles  of  law,  it  is  difficult  to  see  in  the 
proposed  expedient  any  thing  more  than  an  unauthor- 
ized act  of  judicial  legislation,  framed  to  avoid,  if  possi- 
ble, the  evils  flowing  from  the  previous  establishment 
of  an  unsound  doctrine. 

§'586.    These  considerations  lead  us  to  the  conclu- 
sion that,  ixs  a  general  rule,  the  maker  of  a  negotiable 

^  Quarles  v.  Porter,  12  Missouri,  7G  ;  Colcord  v.  Daggett,  18  Missouri. 

[420] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.        §  5ST 

note,  should  not  be  charged  as  garnishee  of  the  payee, 
under  an  attachment  served  before  the  maturity  of  the 
note,  unless  it  he  affirmatively  shoivn,  thai,  hefore  the  rendition 
of  the  judgment,  the  note  had  heeome  due,  and  was  then  still 
the  property  of  the  payee.  Let  us  now  examine  the  bear- 
ing of  the  adjudications  on  this  subject. 

§  587.  In  New  Hampshire,  Vermont,  Pennsylvania, 
South  Carolina,  Louisiana,  and  Iowa,  it  has  been  de- 
cided, on  principle,  uninfluenced  by  statutory  provisions, 
that  the  maker  of  a  negotiable  note  shall  not  be  charged 
as  garnishee  of  the  payee  while  the  note  is  still  current. 
In  New  Hampshire,  the  court  said :  "  The  reason  of  this 
rule  is  founded  upon  the  negotiable  quality  of  the  pa- 
per. If  the  trustee  could  be  charged  in  such  a  case, 
•then  it  might  happen  that  either  a  hand  fide  purchaser 
of  the  note  must  lose  the  amount  of  it,  or  the  maker, 
without  any  fault  on  his  part,  be  compelled  to  pay  it 
twice.  To  avoid  such  a  dilemma  the  rule  was  estab- 
lished." But,  while  announcing  this  general  doctrine, 
the  court  charged  the  garnishee,  because  it  appeared 
that  the  notes  he  had  given  the  defendant  were,  at  the 
time  of  the  garnishment,  in  the  garnishee's  own  hands, 
having,  with  other  notes,  been  deposited  with  him  by 
the  defendant,  to  indemnify  him  for  becoming  the  de- 
fendant's bail.  In  reference  to  this  state  of  facts  the 
court  say,  — "  when  the  process  was  served  upon  the 
trustee  he  had  the  notes  he  had  given  in  his  own  hands, 
and  under  his  own  control ;  and  those  notes  could  not 
be  transferred  to  any  other  person  in  the  ordinary 
course  of  business,  while  he  then  held  them,  nor  can  he 
be  held  to  pay  them  again,  if  he  shall  be  charged  in 
36  [421] 


§  589  garnishee's    liability   as   a   debtor.    [cH.  XXVIII. 

this  suit  on  that  account.     The  reasons  on  which  the 
rule  is  founded  da  not  then  appear  to  exist  in  this  case."^ 

§  588.  In  Vermont,  before  the  revision  of  the  stat- 
utes, in  1836,  it  was  held  that  the  maker  of  a  nego- 
tiable note  might  be  charged  as  garnishee  of  the  payee, 
notwithstanding  an  assignment  of  the  note  before  the 
attachment,  unless  notice  of  the  assignment  had  been 
given  to  the  maker.^  The  particular  provision  which 
justified  this  construction  was  that  the  maker  of  a  note, 
when  sued  by  an  indorsee,  might  not  only  have  offsets 
of  all  debts  due  him  from  the  payee  hcfore  notice  of  the 
indorsement,  but  could  give  in  evidence  any  thing  which 
would  equitably  discharge  him  in  an  action  by  the 
payee.  By  the  statute  of  1836,  this  provision  w\as  re- 
pealed in  relation  to  negotiable  notes,  and  the  effect  of- 
the  repeal  was  to  put  all  negotiable  notes  on  the  footing 
of  mercantile  paper  in  a  commercial  country.^  Thence 
followed  a  change  in  the  decisions  of  the  court,  and  it 
was  afterwards  held  that  the  negotiation  of  a  note  of 
this  character,  before  it  became  due,  required  no  notice 
to  the  maker,  and  would  defeat  an  antecedent  garnish- 
ment of  him  in  an  action  against  the  payee.'^ 

§  589.  The  same  court  subsequently  took  stronger 
ground,  in  a  case  where  negotiable  notes  had  been  ex- 
ecuted, and  were  not  yet  due,  and  the  maker  was  sum- 
moned as  garnishee  of  the  payee.     They  there  s^y,  — 


^  Stone  V.  Dean,  5  New  Hamp.  502. 

^  Britton  v.  Preston,  9  Vermont,  257. 

^  Uinsdilly.  Saflbrd,  11  Vermont,  309. 

*  Ilinsdill  V.  Safford,  11  Vermont,  309 ;  Little  v.  Hale,  Ibid.  482. 

[422] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.        §  590 

"  We  ought  not  to  hold  the  maker  of  the  notes  hable, 
unless  he  could  rely  upon  this  judgment  as  a  complete 
defence  against  the  notes.  This  he  could  not  do,  if,  at 
the  time  of  rendering  the  judgment,  the  notes  had  been 
already  indorsed,  and  the  indorsee  not  before  the  court. 
We  cannot  know  that  this  is  not  the  case.  But  if  we 
could  know  that  the  notes  were  now  in  the  hands  of 
the  payee,  in  order  to  hold  the  maker  liable,  we  must 
destroy  the  future  negotiability  of  the  notes,  and  thus 
put  it  in  the  power  of  the  holder  to  impose  upon  inno- 
cent purchasers,  or  else  enable  the  holder  to  defraud 
the  maker  by  negotiating  the  notes  after  the  judgment 
in  the  attachment  suit.  There  seems  to  be  no  other  mode 
of  securing  the  intei-ests  of  all  concerned,  short  of  denying  all 
light  to  attach,  hij  this  process,  the  interest  in  negotiable  paper 
ivhile  citrreni."  -^ 

§  590.  In  Pennsylvania,  the  distinction  between  ne- 
gotiable and  unnegotiable  notes  did  not  formally  pre- 
vail. All  notes  were  there  unnegotiable,  though  assign- 
able in  a  particular  manner  prescribed  by  law.  Whether 
the  maker  of  a  neo;otiable  note  could  be  held  as  s>:ar- 
nishee  of  the  payee,  received,  nevertheless,  an  early  de- 
cision in  that  State,  in  the  previously  cited  case  of  a 
note  executed  there  and  unnegotiable,  but  delivered  to 
the  payee  in  New  York  where  it  was  negotiable,  and 
the  maker  of  which  was,  before  the  maturity  of  the 


^  Hutchins  v.  Evans,  13  Vermont,  541.  This  decision  was  given  in  1841, 
and  in  the  same  year  the  Legislature  of  Vermont  passed  a  statute  subjecting 
all  negotiable  paper  to  attachment,  ■whether  under  or  over  due,  unless  the 
same  had  not  only  been  negotiated,  but  notice  thereof  given  to  the  maker  or 
indorser,  before  the  service  of  trustee  process  on  him.  Williams'  Compiled 
Statutes  of  Vermont,  262;  Kimball  v.  Gay,  16  Vermont,  131. 

[423] 


§  592  garnishee's    liability   as    a   debtor.    [cH.  XXVIII. 

note,  summoned  as  garnishee  of  the  payee.  The  court 
there  said,  —  "There  is  no  judgment  or  authoritative 
dictum,  to  be  found  in  any  book,  that  money  due  upon 
such  a  negotiable  instrument,  can  be  attached  before  it 
is  payable ;  and  in  point  of  reason,  policy,  and  usage, 
as  well  as  upon  principles  of  convenience  and  equity, 
we  think  it  would  be  dangerous  and  wrong  to  introduce 
and  establish  a  precedent  of  the  kind.  To  adjudge  that 
a  note,  which  passes  from  hand  to  hand  as  cash ;  on 
which  the  holder  may  institute  a  suit  in  his  own  name ; 
which  has  all  the  properties  of  a  bank  note  payable  to 
bearer;  which  would  be  embraced  by  a  bequest  of 
money ;  and  which  is  actually  in  circulation  in  another 
State ;  should  be  affected  in  this  way,  by  a  foreign  at- 
tachment, would  be,  in  effect,  to  overthrow  an  essential 
part  of  the  commercial  system,  and  to  annihilate  the 
negotiable  quality  of  all  such  instruments."  ^ 

§  591.  In  South  Carolina,  the  court  refused  to  charge 
the  maker  of  a  negotiable  note,  as  garnishee  of  the 
payee,  while  the  note  was  still  current,  though  the 
plaintiff  offered  to  give  security  to  indemnify  the  gar- 
nishee against  the  note.  "The  probability,"  said  the 
court,  "is  so  great  that  the  absent  debtor  may  have 
transferred  negotiable  notes,  that  it  would  be  too  great 
a  hardship  to  compel  the  maker  to  pay  the  money,  and 
resort  to  his  indemnity,  if  he  should  be  compelled  to 
pay  it  over  again."  ^ 

§  592.   In  Louisiana,  it  was  decided,  that  the  maker 


^  Liullow  V.  Bingham,  4  Dallas,  47. 
^  GafTney  v.  Bradford,  2  Bailev,  441. 

[  424  ] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.        §  592 

of  such  a  note  could  not  be  charged  before  the  note  be- 
came due,  whether  in  his  answer  he  stated  that  he  did 
not  know  who  held  his  note,  or  that  he  knew  the  de- 
fendant was  the  owner  of  it  at  the  time  of  the  garnish- 
ment. "  In  this  case,"  the  court  observed,  "  negotiable 
paper,  supposed  to  belong  to  the  defendant,  is  attempted 
to  be  attached  by  interrogatories  propounded  to  the 
maker,  and  upon  the  latter  answering  that  he  does  not 
know  by  whom  his  notes  are  held,  he  is  sought  to  be 
made  liable  as  if  he  had  actually  declared  himself  in- 
debted to  defendant.  Untenable  as  such  a  position 
would  seem  to  be,  an  effort  has  been  made  to  support 
it  by  argument.  It  is  said  the  attachment  was  laid  in 
the  ofarnishee's  hands  before  he  had  notice  of  the  trans- 
fer  of  his  notes,  and  a  series  of  decisions  of  this  court 
have  been  cited  to  show  that  the  transferree  of  a  debt  is 
only  possessed,  as  regards  third  persons,  after  notice  has 
been  given  to  the  debtor  of  the  transfer  having  been 
made ;  than  this,  there  is,  perhaps,  no  principle  of  our 
laws  better  settled;  but  it  obviously  applies  only  to 
credits  not  in  a  negotiable  form.  As  to  notes  indorsed 
in  blank,  which  circulate  and  pass  from  hand  to  hand 
by  mere  delivery,  it  has  never  been,  nor  can  it  be  pre- 
tended, that  any  notice  of  transfer  is  necessary.  If, 
then,  no  such  notice  is  ever  given,  how  is  a  garnishee 
who  has  issued  his  promissory  note,  indorsed  in  blank, 
to  know  in  whose  hands  it  happens  to  be  at  the  precise 
moment  when  he  is  called  upon  to  answer  interrogato- 
ries ?  And  if,  perchance,  he  were  to  know  that  his  note 
was  still  the  property  of  the  defendant,  and  were  so  to 
declare  it,  could  such  a  proceeding  restrain  its  negotia- 
bility ?  Could  it  affect  the  rights  of  a  loud  fide  holder  ? 
Surely  not.  The  ownership  of  negotiable  paper  is  in- 
3G=--  [425] 


§  595        garnishee's  liability  as  a  debtor,  [ch.  xxviii. 

cessantly  varying,  and  the  obligation  of  the  maker  of 
such  instruments  is  not  to  pay  to  any  particular  person, 
but  to  the  holder,  at  maturity,  whoever  he  may  be. 
Thus  it  is  obvious  that  the  garnishee,  in  this  case,  could 
give  no  other  answer  than  that  he  has  made,  and  it  is 
equally  obvious,  that  by  pursuing  this  course,  the  plain- 
tiffs have  attached  no  property  out  of  which  their  judg- 
ment can  be  satisfied."  ^ 

§  593.  In  Iowa,  the  rule  was  laid  down  that  the 
maker  of  a  negotiable  instrument  cannot  be  charged  as 
garnishee  of  the  payee,  unless  the  instrument  has  be- 
come due,  and  is  shown  to  be,  at  the  time  of  the  gar- 
nishment, in  the  possession  of  the  defendant.^ 

§  594.  In  North  Carolina,  it  is  held  to  be  necessary, 
in  order  to  charge  the  maker  of  a  negotiable  note  as 
garnishee,  to  prove  that  the  payee  had  not  assigned 
the  note  by  indorsement  before  it  was  due ;  for  other- 
wise it  does  not  appear  that  the  maker  is  indebted  to 
the  payee.^ 

§  595.  Against  this  strong  array  of  reason  and  au- 
thority in  favor  of  protecting  negotiable  paper  from 
attachment  while  it  is  current,  there  are  some  cases,  to 
which  we  will  now  direct  attention.  The  Supreme 
Court  of  Connecticut  considered  that  no  doubt  existed 
that  a  negotiable  note,  before  it  has  been  negotiated. 


^  Sheets  V.  Culver,  14  Louisiana,  449 ;  Kimball  v.  Plant,  Ibid.  511 ;  Erwin 
V.  Com.  &  R.  R.  Bank,  3  Louisiana  Annual,  18G. 
'^  Couuiiissioners,  &c.  v.  Fox,  Morris,  48. 
^  Myers  I'.  Beeman,  9  Iredell,  116 ;  Ormond  v.  Moje,  11  Ibid.  564. 

[426] 


ciL  XXVIII.]  garnishee's  liability  as  a  debtor.        §  5*97 

may  be  attached  on  a  demand  against  the  paj'ee,  but 
that  the  attachment  was  Uahle  to  he  defeated  Jjtj  the  trans- 
fer of  the  note,  at  any  time  before  it  falls  due}  The  sum  of 
this  is,  that  the  garnishment  operates  only  on  the  rather 
slender  probability,  that  a  defendant,  whose  circum- 
stances justify  an  attachment  against  him,  will  hold  a 
negotiable  note  in  his  possession  until  after  it  becomes 
due,  merely  to  have  its  proceeds  go  to  the  attaching 
creditor,  whom  he  might  have  paid  without  suit,  in- 
stead of  selling  the  note  and  appropriating  the  proceeds 
to  his  private  use. 

§  596.  In  Tennessee,  it  is  held  that  a  negotiable  note 
may  be  attached ;  but  it  is  also  held  that  the  liability 
of  a  garnishee  is  conclusively  settled  by  his  answer; 
and  if  he  answers  that  he  does  not  know  where  the 
note  is,  or  who  holds  it,  he  does  not  admit  indebtedness 
to  the  defendant,  and  cannot  be  charged,  although  at 
the  date  of  the  answer  the  note  may  be  over  due ;  for 
it  may  have  been  assigned  before  it  fell  due.  But 
when  the  garnishee  answers  that  he  was  indebted  at 
the  time  of  the  garnishment,  and  it  appears  that  the 
note  had  not  heen  assigned  before  it  ivas  dishonored  for  non- 
IKujment,  he  is  liable.^ 

§  597.  In  Missouri,  it  has  always  been  held  that  ne- 
gotiable paper  may  be  attached.^  In  the  earliest  re- 
ported case  in  that  State,  involving  the  question,  it  was 

^  Enos  V.  Tuttle,  3  Conn.  27. 

"  Huff  V.  Mills,  7  Yerger,  42;  Turner  v.  Armstrong,  9  Ibid.  412  ;  Moore 
V.  Greene,  4  Humphreys,  299  ;  Daniel  v.  Rawlings,  6  Ibid.  403. 

*  Scott  V.  Hill,  3  Missouri,  88 ;  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9 
Ibid.  416  ;  Quarles  v.  Porter,  12  Ibid.  76  ;  Colcord  v.  Da^-o-ett,  18  Ibid. 

["427  ] 


§  598  garnishee's   liability   as   a   debtor.    [cH.  XXVIII. 

decided  that  in  order  to  charge  the  maker  of  such  pa- 
per in  an  action  .against  the  payee,  the  plaintiff  must 
prove  that,  at  the  time  of  the  garnishment,  the  defend- 
ant was  the  holder  of  the  note.^  The  court  once  went 
so  flir  as  to  sanction  a  judgment  against  the  maker  of  a 
negotiable  note,  though  he  stated  in  his  answer  that  he 
had  been  informed  and  believed  that  the  note  was  as- 
signed, for  a  valuable  consideration,  before  the  garnish- 
ment;'^ but  in  another  case,  subsequently,  it  was  ruled 
otherwise.^  The  court  expressed  themselves  sensible  of 
the  difficulties  that  exist  in  holding  that  debts  evi- 
denced by  negotiable  paper  may  be  attached  in  the 
hands  of  the  payor,  particularly  as  the  statute  pre- 
scribes no  mode  by  which  an  assignee  can  be  brought 
before  the  court,  and  have  his  rights  litigated.  "  But," 
say  the  court,  "  as  the  judgment  is  not  conclusive 
against  him,  unless  he  has  notice,  and  chooses  to  come 
in  and  interplead,  he  would  have  a  right,  at  any  subse- 
quent time,  before  the  money  was  paid  over  to  the  at- 
taching creditor,  to  arrest  the  payment,  or,  after  pay- 
ment, a  right  to  his  action,  to  recover  it  hacJc."^ 

§  598.  In  Maryland,  the  courts  have  gone  to  greater 
lengths  in  sustaining  the  attachment  of  negotiable  paper 
than  in  any  other  State.  It  was  there  held  at  an  early 
day,  that  the  garnishment  of  the  maker  of  a  note  in  a 
suit  against  the  payee,  before  the  note  is  passed  away 
by  the  latter,  whether  before  or  after  it  becomes  due, 


1  Scott  V.  Hill,  3  Missouri,  88. 
-  Quarlcs  v.  Porter,  12  Missouri,  7G. 
^  "\A'akk'n  v.  Valiant,  15  Missouri,  409. 
Quarlcs  v.  Porter,  12  Missouri,  76  ;  Colcord  v.  Daggett,  18  Ibid. 

[428] 


CH.  XXVIII.]  garnishee's  liability  as  a  debtor.        §  599 

will  be  sustained.!  This,  of  course,  involves  the  total 
destruction  of  the  negotiability  of  the  note,  and  consti- 
tutes a  fit  foundation  for  a  recent  unexampled  decision 
of  the  Court  of  Appeals  of  that  State,  holding  that, 
where  the  maker  of  a  negotiable  note  is,  before  its  ma- 
turity, summoned  as  garnishee  of  one  who  then  owns 
the  note  as  cm  indorsee,  and  judgment  is  rendered  against 
him,  the  judgment  will  protect  him  against  an  action 
on  the  note,  brought  by  a  subsequent  indorsee,  who  ac- 
quired title  to  the  paper  before  its  maturity,  and  with- 
out any  knowledge  of  the  attachment.^ 

§  599.  In  concluding  this  review  of  the  reported  de- 
cisions in  this  country  on  this  important  subject,  it  is 
proper  to  remark  that  in  none  of  the  States  where  the 
attachment  of  negotiable  paper  has  been  sustained,  are 
the  statutory  provisions  as  to  the  general  scone  and 
effect  of  an  attachment,  more  comprehensive  than  in 
those  States  where  the  contrary  position  is  taken.  In 
every  State  the  defendant's  credits  may  be  attached ; 
and  that  term  is,  as  to  this  question,  fully  as  compre- 
hensive as  if  the  statute  also  authorized,  (as  is  generally 
the  case,)  the  attachment  of  rights  or  effects. 


^  Steuart  v.  West,  1  Harris  &  Johnson,  536. 
"^  Somerville  v.  Brown,  5  Gill,  399. 

[429] 


CHAPTER    XXIX. 

THE    garnishee's    LIABILITY,   AS   AFFECTED    BY    PRE-EXISTING 
CONTRACTS   WITH   THE    DEFENDANT    OR   THIRD   PERSONS. 

§  600.  Having  previously  considered  the  liability  of 
a  garnishee,  in  respect  of  property  of  the  defendant  in 
his  hands,  as  affected  by  preexisting  contracts  entered 
into  by  him,  and  the  principles  governing  the  two  cases 
being  similar,  it  only  remains  to  exhibit  here  such  cases 
as  refer  particularly  to  and  illustrate  the  case  of  an  in- 
debtedness on  the  part  of  the  garnishee  to  the  defendant. 

§  601.  It  is  an  unquestionable  doctrine  that  the  gar- 
nishment of  a  person  cannot  be  permitted  to  interfere 
■with  a  contract  entered  into  between  him  and  a  third 
person  with  reference  to  his  indebtedness  to  the  defend- 
ant. Thus,  where  A.  drew  a  bill  of  exchange  on  B.  in 
favor  of  C,  which  was  indorsed  by  C.  to  D.,  his  factor, 
and  then  accepted  by  B.,  and  afterwards  B.  was  gar- 
nished in  a  suit  against  C. ;  it  was  held  that  B.'s  accept- 
ance was  an  express  contract  to  pay  B.,  the  factor,  and 
that  B.  could  not,  therefore,  be  held  as  garnishee  of  C, 
the  principal.^ 


^  Van  Staphorst  v.  Pearce,  4  Mass.  258. 

[430] 


CH.  XXIX.]    garnishee's  liability  as  a  debtok.         §  G03 

§  602.  So,  where  A.  employed  B.,  at  an  annual  salary 
of  $900,  and  a  short  time  after  the  engagement  com- 
menced, B.  requested  that  his  salary  might  be  paid,  as 
it  accrued,  to  his  father,  to  whom  he  was  indebted,  and 
A.,  with  the  approval  of  the  father,  agreed  so  to  do ;  it 
was  held  that  A.  could  not  be  held  as  garnishee  of  B. 
The  court  say,  —  "  the  statement  shows  clearly  a  special 
agreement  between  A.  and  B.'s  father,  at  the  instigation 
of  the  son,  to  pay  the  father  the  wages  due,  and  to  be- 
come due  to  the  son.  Such  an  agreement,  once  being 
made,  it  was  not  in  the  power  of  the  son  to  revoke  it 
without  the  father's  consent."^ 

§  603.  So,  where  the  defendant  kept  a  boarding- 
house  for  the  workmen  employed  in  the  garnishee's 
manufactory,  and  the  garnishee  became  indebted  to 
the  defendant  for  their  board  ;  but,  when  the  defendant 
began  to  keep  the  house,  it  was  verbally  agreed  be- 
tween the  defendant,  the  garnishee,  and  several  third 
persons,  who  subsequently  furnished  her  with  provis- 
ions and  other  supplies,  that  the  supplies  should  be  de- 
livered and  charged  to  the  defendant,  and  that  at  the 
end  of  each  quarter,  the  garnishee  would  see  that  the 
persons  who  furnished  them  were  paid ;  the  court  held 
that  whatever  the  garnishee  had  paid  on  this  guaranty 
must  go  to  discharge  his  debt  to  the  defendant,  and 
that  the  garnishee,  though  his  undertaking  was  void  by 
the  statute  of  frauds,  was  not  bound,  against  his  own 
choice,  to  set  up  that  statute  in  order  to  avoid  his 
promise.^ 


^  Swisher  v.  Fitch,  1  Smedes  &  Marshall,  541. 
8  Cahill  V.  Bigelow,  18  Pick.  3G9. 

[431] 


§  605  garnishee's   liability   as   a   debtor.     [cH.  XXIX. 

§  604.  It  has,  however,  been  held  in  Vermont,  that 
a  garnishee  will  not  be  protected  by  having  promised 
to  pay  the  amount  of  his  indebtedness  to  the  creditors 
of  the  defendant,  if  such  promise  be  void  by  the  statute 
of  frauds;^  though  it  is  difficult  to  see  the  reason  of 
this  decision,  since  that  statute  is  undoubtedly  intended 
as  a  personal  protection,  and  that  only  where  the  prom- 
iser  chooses  to  avail  himself  of  it. 

§  605.  But  where  the  garnishee  is  indebted,  it  will 
not  vary  his  liability,  that  his  contract  with  the  defend- 
ant is  to  pay  the  money  in  another  State  or  country 
than  that  in  which  the  attachment  is  pending.  Thus, 
where  it  was  urged  as  a  ground  for  discharging  a  gar- 
nishee, that  his  debt  to  the  defendant  was  contracted  in 
England,  and  was  payable  there  only,  so  that  the  de- 
fendant could  not,  and  therefore  the  plaintiff  could  not 
make  it  payable  elsewhere,  the  court  said,  —  "we  do 
not  perceive  any  legal  principle  upon  which  the  objec- 
tion rests.  This  was  a  debt  from  the  garnishee  every- 
where, in  whatever  country  his  person  or  property 
might  l^e  found.  A  suit  might  have  been  maintained 
by  the  defendant  here,  and  therefore  the  debt  may  be. 
attached  here."  ^  So,  where  the  debt  was  contracted 
where  the  garnishment  took  place,  but  the  garnishee 
agreed  to  pay  the  money  in  another  State,  he  was  nev- 
ertheless charged,  the  court  referring  to  the  case  just 
cited  as  sustaining  their  decision.  ^ 

^  Hazeltine  v.  Page,  4  Vermont,  49. 

"  Blake  v.  Williams,  6  Pick.  28G. 

^  Stui-tevant  v.  Robinson,  18  Pick.  175. 

[  432  ] 


CHAPTEE   XXX. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  A  FRAUDULENT 
ATTEMPT  BY  THE  DEFENDANT  TO  DEFEAT  THE  PAYMENT  OF 
HIS    DEBTS. 

§  606.  Cases  have  arisen,  in  which  a  person  indebted 
has  sought  to  prevent  his  effects  from  being  reached  for 
the  payment  of  his  debts,  by  selling  property,  and 
taking  promissory  notes  therefor  payable  to  third  per- 
sons, in  the  expectation  that  such  notes  could  not  be 
reached  by  garnishment.  All  such  attempts  being  in 
fraud  of  just  creditors  have  been  entirely  discounte- 
nanced Avherever  they  have  been  made,  and,  if  the  cir- 
cumstances permitted,  without  violating  established 
legal  principles,  have  been  defeated. 

§  607.  Thus,  in  Vermont,  it  appeared  from  the  an- 
swer of  the  garnishee  that  he  had  been  indebted  to  the 
defendant ;  that  the  defendant  said  to  him  he  was  afraid 
his  creditors  would  attach  the  debt,  and  desired  the  gar- 
nishee to  give  notes  payable  to  a  third  person,  which 
was  done,  without  his  concurrence  or  knowledge.  The 
court  said,  —  "We  could  not  feel  justified  to  allow  so 
obvious  a  subterfuge  to  interpose  any  obstacle  in  the 
way  of  this  process.  If  the  person  to  whom  the  note  is 
payable  is  now  the  lond  fide  holder  of  this  note,  and  re- 
ceived it  in  the  due  course  of  business,  while  it  was  still 
37  [433] 


§  609  garnishee's  liability  as  a  debtor,     [en.  XXX. 

current,  the  interest  thus  acquired  cannot  be  defeated 
hy  this  process,  although  pending  at  the  time  the  holder 
acquired  a  title  to  it.  But  if  the  holder  took  the  note 
when  over  due,  he  took  it  subject  to  all  the  defences 
which  existed  while  the  note  was  in  the  hands  of  the 
defendant.  Among  such  defences  may  be  reckoned  at- 
tachment by  this  process."  ^ 

§  608.  So  in  New  Hampshire,  where  A.  sold  property 
to  B.,  and  unnegotiable  notes  therefor  were  executed  to 
C,  a  resident  in  another  State,  who  was  unknown  to  B. ; 
and  A.,  at  the  time  of  selling  the  property  and  taking 
the  notes,  said  he  was  owing  some  debts  that  he  never 
meant  to  pay,  and  some  that  he  would  pay  when  he 
was  ready,  the  court  held  the  transaction  fraudulent  as 
to  A.'s  creditors,  and  charged  B.  as  his  garnishee.^ 

§  609.  So  in  Connecticut,  where  A.,  with  a  view  to 
keep  his  property  out  of  the  reach  of  his  creditors,  and 
in  pursuance  of  a  combination  with  B.  for  that  pur- 
pose, sold  goods  belonging  to  him  as  the  property  of  B,, 
and  took  from  the  vendee  a  negotiable  note,  payable 
to  B.  at  a  future  day,  which  B.  assigned  before  it  be- 
came due,  to  C,  who  was  acquainted  with  the  transac- 
tion ;  it  was  held  that  the  vendee  was  the  debtor  of  A., 
and  was  therefore  liable  as  his  garnishee.^ 

^  Camp  V.  Clark,  14  Vermont,  387.     See  Bibb  r.  Smith,  1  Dana,  580. 

^  Green  v.  Doughty,  G  New  Hamp.  572. 

^  Enos  V.  Tnttle,  3  Conn.  27.     See  Price  v.  Bradford,  4  Louisiana,  35. 

[434] 


CHAPTER    XXXI. 

THE    GARXISHEE'S    LIABILITY,    AS   AFFECTED    BY   AX   EQUITABLE 
ASSIGNMENT    OF   THE    DEBT. 

§  GIO.  We  have  previously  seen  that  an  equitable 
assignment  of  personal  property  of  a  defendant  in  the 
hands  of  a  garnishee,  will  relieve  the  latter  from  liabil- 
ity as  garnishee  on  account  of  such  property.  We  come 
now  to  the  application  of  the  same  principle  to  a  debt 
due  from  the  garnishee  to  the  defendant.  When  it  is 
sought  to  reach  by  garnishment  a  credit  of  the  defend- 
ant, it  must  be  both  legally  and  equitably  due  him. 
Therefore,  a  debt  due  to  one  as  a  trustee  for  another, 
cannot  be  attached  in  an  action  against  the  trustee,  be- 
cause though  legally  due  him,  it  is  not  his  property, 
but  another's.  Thus,  a  note  having  been  placed  in  the 
hands  of  an  attorney  at  law  for  collection,  he  extended 
the  time  of  payment,  and  took  a  new  obligation  in  his 
own  name.  A  creditor  of  the  attorney  sought  to  sub- 
ject the  debt  secured  by  this  obligation  to  the  payment 
of  a  debt  due  him  from  the  attorney.  The  evidence 
showed  that  the  latter  did  not  take  the  obligation  in 
his  own  right,  or  for  his  own  benefit ;  and  it  was  held 
that  the  attachment  could  not  be  sustained.^    The  same 

^  Rodgei'S  V.  Hendsley,  2  Louisiana,  597. 

[435] 


§  611  garnishee's    liability   as    a    debtor.      [gII.  XXXI. 

principle  is  applicable  to  all  cases  of  equitable  assign- 
ments of  debts; -where  the  defendant  may  be  legally 
entitled  to  collect  the  debt,  but  not  for  his  own  benefit. 

§  611.  The  doctrine  which  establishes  the  assignabil- 
ity in  equity  of  choses  in  action,  arises  from  the  public 
utility  of  increasing  the  quantity  of  transferable  prop- 
erty, in  aid  of  commerce  and  of  private  credit.^  It  is  a 
well-known  rule  of  the  Common  Law,  that  no  pos&ibil- 
ity,  right,  title,  or  thing  in  action,  can  be  granted  to 
third  persons.  Hence,  a  debt,  or  other  chose  in  action 
could  not  be  transferred  by  assignment,  except  in  case 
of  the  king  :  to  whom  and  by  whom  at  the  Common 
Law  an  assignment  of  a  chose  in  action  could  always  be 
made ;  for  the  policy  of  the  rule  was  not  supposed  to 
apply  to  the  king.  So  strictly  was  this  doctrine  con- 
strued, that  it  w^as  even  doubted  whether  an  annuity 
was  assignable,  although  assigns  were  mentioned  in  the 
deed  creating  it.  And  at  law,  with  the  exception  of 
negotiable  instruments  and  some  few  other  securities, 
this  still  continues  to  be  the  general  rale,  unless  the 
debtor  assents  to  the  transfer ;  but  if  he  does  assent, 
then  the  right  of  the  assignee  is  complete  at  law,  so 
that  he  may  maintain  a  direct  action  against  the  debtor, 
upon  the  implied  promise  to  pay  him  the  same,  which 
results  from  such  assent.  But  courts  of  equity  have 
long  since  totally  disregarded  this  nicety.  They  ac- 
cordingly give  effect  to  assignments  of  choscs  in  action. 
Every  such  assignment  is  considered  in  equity  as  in  its 
nature  amounting  to  a  declaration  of  trust,  and  to  an 
agreement  to  permit  the  assignee  to  make  use  of  the 

^  Dix  V.  Cobb,  4  Mass.  508. 

[436] 


CH.  XXXI.]    garnishee's  liability  as  a  debtor.         §  614 

name  of  the  assignor,  in  order  to  recover  the  debt,  or 
to  reduce  the  property  into  possession.^ 

§  612.  Hence  where  it  appears  that  a  debt  due  from 
the  garnishee  to  the  defendant  has  been  equitably  as- 
signed, the  court  will  take  cognizance  of  the  assignment 
and  protect  the  rights  of  the  assignee.  For  as  the  de- 
fendant has  parted  with  his  interest  in  the  debt,  and 
can  no  longer  maintain  an  action  for  it  against  the  gar- 
nishee, for  his  own  benefit ;  and  as  the  plaintiff  can 
acquire  no  greater  interest  in  the  debt  than  the  defend- 
ant had  at  the  time  of  the  garnishment ;  it  results  that 
the  garnishee  cannot  be  charged  for  that  which,  equi- 
tably, he  has  ceased  to  owe  to  the  defendant,  and  owes 
to  another  person. 

§  613.  In  order,  however,  that  the  rights  of  the  as- 
signee should  be  fully  protected,  it  is  important  that 
he  immediately  notify  the  debtor  of  the  assignment. 
Though  the  assignment,  as  between  the  parties  to  it,  is 
complete  and  effectual  from  the  moment  it  is  made, 
and  the  assignor,  if  he  afterward  receive  payment  of 
the  debt,  will  be  obliged  to  pay  the  amount  to  the  as- 
signee, yet  the  debtor  is  under  no  obligation  to  pay 
the  assignee  until  he  receive  notice  of  the  assignment. 
After  that,  a  payment  to  the  assignor  will  be  at  the 
debtor's  peril. 

§  614.  Hence,  if  a  debtor  be  summoned  as  garnishee 
of  his  creditor,  and  have  received  no  notice  of  an  as- 
signment of  his  debt,  a  judgment  rendered  against  him 


2  Story's  Equity,  §  1039,  1040. 

37^'=        '  [437] 


§014  garnishee's    liability   as    a    debtor.      [cIL  XXXI. 

will  protect  him  from  subsequent  liability  to  an  as- 
signee.^ If  lie  4iave  received  information  of  an  assign- 
ment, it  is  his  duty,  in  answering,  to  state  that  fact,  so 
as  to  guard  the  rights  of  the  assignee ;  but  more  espe- 
cially his  own  :  for  if  he  fail  to  do  so,  and  judgment  go 
against  him  as  a  debtor  of  the  assignor,  it  will  afford 
him  no  protection  against  a  suit  by,  and  second  pay- 
ment to,  the  assignee.^  The  particular  shape  in  which 
this  information  may  have  been  received,  is  of  no  con- 
sequence, provided  it  be  shown  to  have  been  derived 
from  the  assignee  or  his  agent.^  And  it  is  no  part  of 
the  garnishee's  duty,  (except,  perhaps,  in  those  New 
England  States  where  facts  stated  in  the  garnishee's  an- 
swer are  regarded,  only  so  fiir  as  he  may  declare  his 
belief  of  their  truth,)  to  ascertain  the  truth  or  falsity  of 
the  information,  before  he  determines  whether  he  will 
state  it  in  his  answer*.  True  or  false,  it  should  be  stated 
in  every  case,  whether  the  answer  is  in  itself  conclusive, 
or  may  be  controverted  and  disproved.  For  if  the  an- 
swer be  conclusive,  and  the  garnishee  fails  to  state  the 
information  he  has  received,  because  he  may  not  be- 
lieve it  to  be  true,  he  assumes  all  the  responsibility  of 
the  correctness  of  his  belief,  not  only  as  to  the  facts 
within  his  knowledge,  but  as  to  other  facts,  of  the  exist- 
ence of  which  he  may  be  ignorant,  and  which  might 
show  his  information  to  be  true.  And  if  the  answer  be 
not  in  itself  conclusive,  but  ma}^  be  controverted  and 
disproved,  he  should  not  prejudge  the  case,  and  decide 


1  ^Voodbrldge  v.  Perkins,  3  Day,  3G 1. 

-  ]!su<!;ent  v.  Opdyke,  9  Robinson  (La.)  453;  Crayton   i'.  Clark,  11  Ala- 
bama, 787  ;  Foster  v.  White,  9  Porter,  221  ;  Colvin  v.  Ricli,  3  Ibid.  175. 
»  Bank  of  St.  Mary  v.  Morton,  12  Robinson  (La.)  409. 

[438] 


CH.  XXXI.]    garnishee's  liability  as  a  debtor.  §  ^16 

that  .the  information  is  untrue  ;  but  should  1  eave  the 
plaintiff  to  deny,  and  the  court  to  adjudicate  its  truth.^ 

§  615.  An  assignment  of  a  debt  will  protect  the 
rights  of  the  assignee  from  a  subsequent  attachment 
against  the  assignor,  though  no  notice  may  have  been 
given  to  the  debtor  before  the  attachment,  if  it  be  given 
in  time  to  enable  him  to  take  advantage  of  it  before 
judgment  against  him  as  garnishee.^  And  it  is  his  duty, 
at  any  time  before  such  judgment,  to  make  such  notice 
known  to  the  court ;  failing  in  which,  the  judgment 
will  avail  him  nothino-  as  a  defence  aorainst  an  action 
b}^  an  assignee  of  the  debt.'^ 

§016.  An  assignment  of  a  debt  is  usually  made  in 
writing,  but  this  formality  is  not  necessary  wdiere  the 
debt  is  evidenced  by  a  writing ;  a  delivery  of  which  to 
the  assignee,  for  a  valuable  consideration,  will  operate 
an  assignment,  so  far  as  to  enable  him  to  maintain  an 
action  upon  it  in  the  name  of  the  assignor.'^  \Yherever, 
therefore,  a  writing  given  by  a  garnishee  to  the  defend- 
ant, has  been  hond  fide  transferred  by  delivery  to  a 
third  person,  the  garnishee  cannot  be  charged.  Thus, 
where  the  evidence  of  the  garnishee's  indebtedness 
consisted  of  a  certificate  of  a  certain  amount  of  lumber 
cut  for  him  by  the  defendant,  with  a  statement  of  what 
w^as  to  be  paid  for  it,  attested   by  third  persons,  and 


^Foster  i?.  Walker,  2  Alabama,  177;  Wicks  v.  Branch  Bank,  12  Jl^Id. 
594. 

-  Dix  V.  Cobb,  4  Mass.  508;  Stevens  v.  Stevens,  1  Aslimead,  190;  Pell- 
man  V.  Hart,  1  Penn.  State,  263  j  Cray  ton  v.  Clark,  11  Alabama,  787. 

^  Crayton  v.  Clark,  11  Alabama,  787. 

*  King  V.  Murpliy,  1  Stewart,  228 ;  Bavley  on  Bills,  2d  Am.  Ed.  102. 

[439] 


§  618  garnishee's   liability   as    a    debtor.        [cH.  XXXI. 

before  the  garnishment  this  certificate  was  assigned  by 
delivery;  the  court  held  the  assignment  good,  and  dis- 
charged the  garnishee.^ 

§  617.  It  is,  however,  impracticable  thus  to  transfer 
by  delivery  a  book  account  or  other  debt,  not  evidenced 
by  writing ;  and  in  such  cases  the  assignment  should, 
for  greater  certainty,  be  written.  But  a  verbal  assign- 
ment will  be  sufficient,  if  assented  to  by  the  debtor. 
Any  writing  by  the  assignor,  delivered  to  the  assignee, 
directing  the  debt  to  be  paid  to  him,  will  be  sufficient 
to  vest  an  equitable  title  in  the  assignee,  so  as  to  secure 
it  against  attachment  as  the  debt  of  the  assignor.  Thus, 
Tv^here  a  garnishee  disclosed  indebtedness  to  the  defend- 
ant, but  stated  that  the  defendant  had  drawn  an  order 
on  him  to  pay  the  balance  of  his  account  to  a  third 
person,  and  it  was  objected  that  this  was  no  assignment, 
because  it  did  not  purport  to  be  for  value  received,  and 
because  it  did  not  appear  but  that  the  drawee  named 
in  the  order  was  the  servant  of  the  defendant,  to 
receive  the  money  for  the  defendant's  use ;  it  was  held 
that  there  was  a  prima  facie  assignment,  and  that  the 
words  value  received  were  not  necessary.^ 

§  618.  So,  where  A.  was  indebted  to  B.  on  a  book 
account,  and  B.  drew  out  a  bill  of  the  items,  and  wrote 
at  the  bottom  a  request  to  A.  to  pay  the  amount  to  C, 
and  notice  of  the  assignment  was  given  to  A.  and  after- 
wards A.  was  garnished  in  a  suit  against  B.,  and  was 


^  Littlefield  v.  Smith,  17  Maine,  327. 

-  Adams  v.  Robinson,  1  Pick.  4G1.      See  Johnson  v.  Thayer,  17  Maine, 
401. 

[440] 


CH.  XXXI.]    garnishee's  liability  as  a  debtor.         §  G19 

charged  as  garnishee  and  paid  the  money ;  and  suit 
was  then  brought  in  B.'s  name,  for  the  use  of  C,  to 
recover  the  money ;  it  was  held  that  the  order,  being 
drawn  for  the  whole  amount  due,  was  an  assignment  of 
the  debt,  and  that  A.  was  bound  to  know  that  an 
assiornment  was  intended.^ 

o 

§  619.  A.  and  B.  constituting  a  firm,  and  residing  in 
the  West  Indies,  being  indebted  to  C.  in  Philadelphia, 
remitted  to  him  in  part  discharge  of  their  debt,  a  bill  of 
exchange  drawn  by  D.  in  their  favor,  on  E.  in  Philadel- 
phia, for  $3,450,  which  was  expressed  upon  its  face  to 
be  drawn  to  reimburse  A.  &  B.  that  sum  advanced  by 
them  for  the  repairs  and  disbursements  of  a  ship  which 
D.  had  purchased  in  the  West  Indies  for  E.  The  bill 
was  not  accepted  by  E.  and  was  protested  for  non-pay- 
ment. Afterwards  C.  brought  suit  on  it  in  the  name 
of  B.,  survivor  of  A.  &  B.,  against  E.  the  drawee.  The 
defendant  pleaded  that  after  the  suit  was  brought,  he 
was  summoned  as  garnishee  of  B.,  and  judgment  had 
been  rendered  against  him  for  $2,029.93  :  to  which  the 
plaintiff  replied  that  the  debt  was  assigned  to  and 
vested  in  C.  long  before  the  garnishment ;  on  which 
issue  was  joined.  The  question  of  law  presented  to 
the  court  was  whether  the  bill  of  exchange  was  an 
assignment  to  C.  of  the  debt ;  and  it  was  held  to  be  so, 
and  to  entitle  C.  to  recover  in  the  name  of  B.,  the  sur- 
vivor, notwithstanding  the  attachment  and  judgment 
against  E.  as  garnishee.^ 

^  Bobbins  v.  Bacon,  3  Maine,  346. 

2  Corser  c.  Craig,  1  Washington,  C.  C.  424. 


§  621         garnishee's  liability  as  a  debtor,    [ch.  xxxl 

§  620.  So,  where  A.,  in  Charleston,  remitted  to  B.,  in 
Philadelphia,  a  bill  of  exchange,  directing  the  proceeds 
thereof,  when  paid,  to  be  appropriated  in  various  pro- 
portions to  the  payment  of  debts  of  A. ;  it  was  held,  in 
Pennsylvania,  that  B.  was  a  trustee  for  the  creditors  of 
A.,  to  whom  A.  had  directed  the  payments  to  be  made, 
and  that  the  creditors  acquired  such  an  interest  in  the 
trust  fund  as  could  not  be  divested,  or  affected  by  an 
attachment  against  A.-^  On  this  point,  however,  a  dif- 
ferent rule  has  been  laid  down  in  Louisiana.  In  a  case 
there  reported,  A.  remitted  to  B.  certain  drafts,  with 
instructions  to  collect  and  pay  over  the  proceeds  to  C. 
Under  an  attachment  against  A.,  B.  was  summoned  as 
his  garnishee.  Afterwards,  pending  the  attachment,  C. 
sued  B.  for  the  proceeds  of  the  drafts ;  and  it  was  held, 
that  the  proceeds  in  B.'s  hands  were  attachable  as  the 
property  of  A.,  and  that  the  existence  of  the  attach- 
ment was  a  valid  defence  as-ainst  the  action  of  C.^ 

§  621.  It  is  not  necessary  that  the  debt  assigned 
should  be  due  at  the  time  of  the  assignment,  in  order 
to  protect  the  rights  of  the  assignee  from  an  attach- 
ment against  the  assignor.  A  debt  afterwards  to  accrue 
may  be  effectually  assigned.  Thus,  where  A.  w^as  em- 
ployed as  a  laborer  by  B.,  and,  being  indebted  to  C, 
executed  a  power  of  attorney  authorizing  C.  to  receive 
and  receipt  for  all  sums  of  money  then  due  or  thereafter 
to  become  due  to  him,  and  stating  that  the  p)ower  was 
an  assignment  of  the  money ;    and  B.  agreed  to  pay 

^  Sharpless  v.  Welsh,  4  Dallas,  279. 
*  Wilson  V.  Lizardi,  15  Louisana,  255. 

[442] 


CH.  XXXI.]      garnishee's    LIABILIir    AS    A   DEBTOR.  §  623 

A.'s  wao-es  to  C. ;  it  was  decided  that  the  assiscnment 
was  valid,  and  that  B.  could  not  be  held  as  garnishee 
of  A.i 

§  622.  So,  where  A.  was  employed  as  an  assessor  of 
the  city  of  Mobile,  and  before  the  service  required  of 
him  in  that  capacity  had  been  performed,  he  drew  an 
order  on  the  corporation  in  favor  of  B.  for  the  agreed 
compensation  for  his  services,  which  was  accepted  by 
the  Mayor  of  the  city ;  it  was  decided  that  the  assign- 
ment of  the  debt  was  complete,  and  that  the  corpora- 
tion could  not  be  held  as  garnishee  of  A.^ 

§  623.  It  is  not,  however,  every  order  which  may  be 
drawn  on  a  party  having  moneys  of,  or  indebted  to, 
the  drawer,  which  will  operate  an  assignment  of  the 
money  or  debt.  If  it  be  drawn  for  the  luhole  of  a  desig- 
nated fund  in  the  hands  of  the  drawee,  it  is  an  assign- 
ment, whether  accepted  by  the  latter  or  not;"  but  it  is 
well  settled  that  where  an  order  is  drawn  on  either  a 
general  or  particular  fund,  /o;-  a  part  onhj^  it  does  not 
amount  to  an  assignment  of  that  part,  unless  the 
drawee  consent  to  the  appropriation  by  an  acceptance 
of  the  draft ;  or  an  obligation  to  accept  may  be  fairly 
implied  from  the  custom  of  trade,  or  the  course  of 
business  between  the  parties,  as  a  part  of  their  con- 
tract."^ 

1  Weed  V.  Jewett,  2  Metealf,  G08.  See  Cahill  v.  Bigelow,  18  Pick.  369  ; 
Yan  Staphorst  v.  Pearce,  4  Mass.  258. 

"^  Payne  v.  Mayor,  &c.  of  Mobile,  4  Alabama,  333.  See  Tucker  v.  jMars- 
teller,  1  Cranch,  C.  C.  254. 

^  M'Menomy  v.  Ferrers,  3  Johnson,  71. 

^  ISIandeville  v.  Welch,  5  AYheaton,  27  7;  Poydras  v.  Delaivare,  13  Louisi- 
ana, 98;  Cowperthwaite  v.  Sheffield,  1  Sanford,  Sup.  Ct.  416. 

[443] 


§  624         garnishee's  liability  as  a  debtor,    [en.  xxxi. 

§  624.  When  a  debt  is  not  evidenced  by  a  writing, 
it  may,  as  just  stated,  be  assigned  verbally,  if  the  debtor 
assent.  Where  such  assent  is  given,  the  assignment  is 
complete,  and  the  debtor  is  bound  to  pay  to  the 
assignee,  and  consequently  cannot  be  charged  as  gar- 
nishee of  the  assignor.  Thus  where  the  answer  of  a 
garnishee  admitted  that  he  had  been  indebted  to  the 
defendant,  but  stated  that  before  he  was  garnished 
there  was  a  verbal  agreement  between  him  and  the 
defendant  and  a  creditor  of  the  defendant,  that  the 
debt  should  be  paid  to  the  creditor ;  the  answer  was 
held  to  be  evidence  in  the  garnishee's  favor  to  show 
that  he  was  not  indebted  to  the  defendant.  This  was 
in  effect  giving  to  the  arrangement  the  *c*liaracter  and 
force  of  an  equitable  assignment  of  the  debt ;  otherwise 
the  answer  was  inadmissible  as  evidence  to  the  purport 
stated.^  So,  where  A.  &  B.  were  partners,  and  upon  a 
dissolution  of  the  firm,  A.  was  found  indebted  to  B., 
and  B.  requested  him  to  pay  the  amount  to  C,  his 
creditor,  who  was  present,  and  A.  replied  that  it  was 
immaterial  to  him  to  whom  he  paid  the  money ;  it  was 
held  to  be  a  transfer  of  the  debt,  so  as  to  prevent  A. 
from  being  charged  as  garnishee  of  B.^ 

^  Black  V.  Paul  10  Missouri,  103. 

-  Lovely  v.  Caldwell,  4  Alabama,  G84. 

[444] 


CHAPTER    XXXII. 

THE  garnishee's  LIABILITY,  AS  AFFECTED  BY  THE  COMMENCE- 
MENT, PENDENCY,  AND  COMPLETION  OP  LEGAL  PROCEEDINGS 
AGAINST  HIM,  BY  THE.  DEFENDANT,  FOR  THE  RECOVERY  OF 
THE   DEBT. 

§  625.  It  frequently  happens  that  when  a  garnishee 
is  summoned,  a  suit  is  pending  against  him  on  the  part 
of  the  defendant,  or  that  the  defendant  has  obtained  a 
judgment  against  him  for  the  debt  in  respect  of  which 
he  is  garnished.  Numerous  cases  of  this  description 
have  received  adjudication,  and  the  decisions  are  by  no 
means  consentaneous.  We  will  consider /r5^,  the  effect 
of  the  pendency  of  a  suit  by  the  defendant  against  the 
garnishee,  and,  second,  the  question  whether  a  judgment 
debtor  can  be  held  as  garnishee  of  the  judgment 
plaintiff. 

§  626.  I.  The  effect  of  the  'pendency  of  a  suit  ly  the  de- 
fendant against  the  garnishee.  It  is  an  invariable  and 
indispensable  principle  that  a  garnishee  shall  not  be 
made  to  pay  his  debt  twice.  Consequently  when  he  is 
in  such  a  situation  that,  if  charged  as  garnishee,  he 
cannot  defend  himself  against  a  second  payment  to  his 
creditor,  he  should  not  be  charged.  This  principle  has 
38  [445] 


§  628        garnishee's  liability  as  a  debtor,    [ch.  xxxil 

been  applied,  as  we  shall  presently  see,  to  cases  where 
legal  proceedings  were  pending  against  the  garnishee 
on  behalf  of  the  defendant. 

§  627.  In  New  Hampshire,  the  broad  ground  was 
taken  that  a  garnishee  cannot  be  charged  on  account 
of  a  debt  for  the  recovery  of  which  an  action,  previ- 
ously commenced  by  the  defendant,  is  pending  at  the 
time  of  the  garnishment ;  ^  and  this  is  believed  to  be 
the  only  State  in  which  this  doctrine  has  been  sanc- 
tioned. A  case  is  reported  as  having  been  decided  in 
Massachusetts  in  1780,  taking  the  same  ground,  under 
the  old  provincial  trustee  act  of  32  Geo.  2  ;^  but  it  was 
overruled  in  1828,  under  the  then  existing  statute.^ 

§  628.  There  came  before  the  Supreme  Court  of  the 
United  States  a  case  which  might  seem  to  favor  the 
same  view,  but  it  is  essentially  different.  A.  sued  B.  in 
the  District  Court  of  the  United  States  for  Alabama. 
After  the  action  was  brought,  B.  was  summoned  as 
garnishee  of  A.,  in  a  county  court  of  Alabama,  and 
judgment  was  there  rendered  against  him.  He  then 
pleaded  the  judgment  in  bar  of  the  action  pending  in 
the  United  States  Court,  and  the  court,  on  demurrer, 
held  the  plea  bad.  The  Supreme  Court  on  this  point 
say:  "The  plea  shows  that  the  proceedings  on  the 
attachment  were  instituted  after  the  eommencement  of 
this  suit.     The  jurisdiction  of  the  District  Court  of  the 


^  Burnham  v.  Folsom^  5  New  Hamp.  5GG. 
^  Gridley  v.  Harraden,  14  Mass.  496. 
2  Thorndike  v.  Ue  Wolf,  G  Pick.  120. 

[446] 


CH.  XXXII.]   garnishee's  liability  as  a  debtor.         §  628 

United  States,  and  the  right  of  the  phiintiff  to  prose- 
cute his  suit  in  that  court,  having  attached,  that  right 
could  not  be  arrested  or  taken  away  by  any  proceed- 
ings in  another  court.  This  would  produce  a  collision 
in  the  jurisdiction  of  courts,  that  would  extremely  em- 
barrass the  administration  of  justice." 

The  court,  however,  expressly  recognize  the  doctrine 
that  if  the  garnishment  had  taken  place  before  the 
action  was  brought,  it  would  have  been  sufficient  in 
abatement,  or  bar,  as  the  case  might  be.  They  say,  — 
"If  the  attachment  had  been  conducted  to  a  conclu- 
sion, and  the  money  recovered  of  the  defendant  before 
the  commencement  of  the  present  suit,  there  can  be  no 
doubt  that  it  might  have  been  set  up  as  a  payment 
upon  the  note  in  question.  And  if  the  defendant 
w^ould  have  been  protected  ji?ro  tanio,  under  a  recovery 
had  by  virtue  of  the  attachment,  and  could  have  pleaded 
such  recovery,  in  bar,  the  same  principle  would  support 
a  plea  in  abatement,  of  an  attachment  pending  prior  to 
the  commencement  of  the  present  suit.  The  attach- 
ment of  the  debt,  in  such  case,  in  the  hands  of  the  de- 
fendant, would  fix  it  there  in  favor  of  the  attaching 
creditor,  and  the  defendant  could  not  afterwards  pa}^  it 
over  to  the  plaintiff.  The  attaching  creditor  would,  in 
such  case,  acquire  a  lien  upon  the  debt,  binding  upon 
the  defendant,  and  which  the  courts  of  all  other  gov- 
ernments, if  they  recognize  such  proceedings  at  all, 
could  not  fail  to  resrard.  If  this  doctrine  be  well 
founded,  the  priority  of  suit  will  determine  the  right. 
The  rule  must  be  reciprocal ;  and  where  the  suit  in  one 
court  is  commenced  prior  to  the  proceedings  under 
attachment  in  another  court,  such  proceedings  cannot 

[447] 


§  630        garnishee's  liability  as  a  debtor,   [cil  xxxii. 

arrest  the  suit ;    and  tlie  maxim  qui  pior  est  tempore^ 
foiior  est  jure,  must  govern  the  case."  ^ 

§  629.  The  difference  between  this  case  and  that  in 
New  Hampshire  lies  in  the  two  proceedings  in  Ala- 
bama taking  place  in  different  jurisdictions,  and  the 
w^hole  decision  of  the  Supreme  Court  of  the  United 
States  was  based  on  the  conflict  of  jurisdiction  which 
would  grow  out  of  a  practice  such  as  that  passed 
upon  by  that  tribunal.  « 

§  630.  In  Massachusetts,  the  liability  of  a  garnishee 
where  an  action  on  behalf  of  the  defendant  is  pending 
against  him,  turns  upon  the  state  of  the  pleadings  in 
the  action  at  the  time  of  the  garnishment.  If  the 
pleadings  are  in  such  state  that  the  garnishee  can 
plead  the  garnishment  in  bar  of  the  action,  he  can  be 
charged  ;  otherwise  not.^  Hence,  in  the  first  reported 
case  of  the  kind  in  that  State,  where  the  garnishee  had 
been  sued  by  the  defendant,  and,  before  the  garnish- 
ment, the  action  had  been  referred  by  rule  of  court,  in 
which  rule  it  was  agreed  that  judgment  should  be 
entered  up  according  to  the  report  of  the  referees,  and 
execution  issued  thereon,  it  was  determined  that  the 
garnishee  could  not  be  charged,  because  in  this  state  of 
the  action  no  day  for  pleading  remained  for  the  gar- 
nishee, and  the  law  furnished  him  no  defence  against 
the  defendant's  demand  of  judgment."^  The  same  rule 
was  enforced  in  a  case  of  similar  facts,  where  the  gar- 

'  ^  Wallace  v.  M'Connel,  13  Teters,  13G. 
-  Thorndikc  r.  Do  Wolf,  G  Pick.  120. 
'  Howell  V.  Freeman,  3  Mass.  121. 

[448] 


CH.  XXXII.]   garxishee's  liability  as  a  debtor.         §  633 

nisliment  took  place  after  the  award  of  the  referees, 
but  before  judgment  rendered  thereon.^ 

§  631.  In  another  case,  where,  after  issue  jomed,  the 
defendant  was  summoned  as  garnishee  of  the  pkintift', 
and  after  verdict  for  the  plaintiff  the  defendant  moved 
in  arrest  of  judgment,  on  the  ground  of  the  garnishment, 
the  same  court  held  that  the  motion  could  not  prevail, 
and  that  the  garnishment  was  void,  because  made  after 
issue  joined,  when  the  garnishee  could  not  defend  him- 
self against  a  recovery  in  the  action,  by  the  trial  of  any 
issue  in  fact  or  in  law,  on  any  plea  which  he  had  oppor- 
tunity to  plead.^ 

§  632.  Where,  however,  the  defendant  in  a  pending 
action  was  garnished,  and,  before  the  action  was  brought 
to  a  judgment,  he  was  charged  as  garnishee,  and  paid 
the  amount  recovered  against  him  as  such,  it  was  held 
to  be  a  good  bar  to  the  action.^ 

§  633.  And  where  the  garnishee  was,  at  the  time  of 
the  garnishment,  indebted  to  the  defendant,  a  payment 
by  him  of  a  judgment  subsequently  recovered,  will  not 
discharge  him.  Thus  where  A.  was  summoned  as  gar- 
nishee of  B.,  pending  a  suit  against  him  by  B.,  and  it 
was  agreed  between  A.  and  the  plaintiff  in  attachment 
that  the  garnishment  proceedings  should  be*  continued 
until  the  suit  of  B.  against  A.  should  be  determined ; 
and  B.  afterward  obtained  judgment  against  A.,  who 


1  M'Caffrey  v.  Moore,  18  Pick.  492. 
^  Kidd  1-.  Shepherd,  4  Mass.  238. 
^  Foster  v.  Jones,  15  Mass.  185. 

38*  [449] 


§  63 5  garnishee's    liability   as    a    debtor.     [cH.  XXXII. 

appealed  therefrom,  and  gave  bond  to  abide  the  deci- 
sion of  the  appellate  court ;  and  A.  then  answered  as 
garnishee,  denying  that  he  was  liable  on  the  contract 
on  which  B.  had  obtained  a  judgment,  and  referring  to 
his  appeal  from  the  judgment;  and,  at  a  subsequent 
time  further  answered,  that  he  had  settled  the  appeal, 
by  paying  the  amount  of  the  judgment  appealed  from ; 
it  was  held  that  A.  was  liable  as  garnishee  of  B.  The 
court  fully  recognized  the  principles  they  had  previ- 
ously laid  down,  in  regard  to  summoning  a  person  as 
garnishee  pending  an  action  against  him,  but  held  that 
the  garnishee  by  his  mistake  of  the  nature  of  his  de- 
fence against  B.'s  demand,  or  by  his  inattention,  had 
placed  himself  beyond  the  protection  of  those  principles.-^ 

§  634.  In  Maine,  the  mere  fact  of  issue  being  joined 
is  considered  to  have  no  effect  in  exempting  the  gar- 
nishee from  liability.^ 

§  635.  In  Vermont,  on  the  other  hand,  the  courts 
seem  disposed  to  adopt  the  Massachusetts  rule,  so  flir 
as  to  discharge  the  garnishee,  where  the  condition  of 
the  action  against  him  is  such  that  he  cannot  plead  the 
garnishment  in  bar  thereof'^  Hence,  where  the  gar- 
nishee disclosed  that  the  defendant  had  commenced  a 
suit  in  chancery  against  him,  which,  before  the  garnish- 
ment, had  been  set  down  for  trial,  and  between  the 
time  of  the  garnishment  and  that  of  filing  the  gar- 
nishee's answer,  had  been  heard  by  the  chancellor,  and 


■     ^  Locke  V.  Tippets,  7  Mass.  149. 
^  Smith  V.  Barker,  10  Maine,  458. 
^  Tromblv  v.  Ckirk,  13  Vermont,  118. 

[450] 


CH.  xxxil]   garnishee's  liability  as  a  debtor.        §  G37 

continued  for  his  decision  ;  the  court  decided  that  the 
garnishee  could  not  be  charged,  because  the  proceed- 
ings in  the  chancery  court  could  not  be  arrested,  or  its 
decree  anticipated,  and  the  garnishee,  if  charged,  might 
be  compelled  to  pay  the  demand  a  second  time.-^ 

§  G36.  In  Pennsylvania,  the  pendency  of  an  action 
by  the  defendant  against  the  garnishee,  at  the  time  of 
the  garnishment,  will  not  prevent  the  garnishee's  liabil- 
ity. The  court  there,  acting  upon  probably  the  first 
case  in  this  country,  in  which  this  question  was 
involved,  reject  the  English  doctrine  that  a  debt  in 
suit  cannot  be  attached,  as  inapplicable  to  the  state  of 
things  here.  The  doctrine  in  England  grows  out  of 
the  fact  that  garnishment  there  is  the  offspring  of 
special  and  local  custom,  and  takes  place  in  inferior 
courts;  and  the  courts  of  general  jurisdiction  will  not 
permit  suits  depending  before  them  to  be  affected  by 
the  process  of  inferior  tribunals  exercising  a  jurisdic- 
tion of  the  kind  belonging  to  the  courts  of  the  sheriff 
and  lord  mayor  of  London.^  In  Alabama  and  Tennes- 
see, the  same  view  is  taken  as  in  Pennsylvania ;  the 
court  in  each  State  basing  its  decision  on  the  case  in 
the  latter  State  just  cited.'^ 

§  637.  We  may  state,  then,  as  the  result  of  these 
decisions,  fird,  that  the  pendency,  in  the  same  court,  of 
an  action  on  behalf  of  the  defendant  asrainst  the  iirar- 


^  "Wadswortli  v.  Clark,  14  Vermont,  139. 

'^  M'Carty   v.  Emlen,  2    Dallas,   277;     s.  c.  2  Yeates,  190;     Crabb  v. 
Jones,  2  Miles,  130 ;  Sweeny  v.  Allen,  1  Penn.  State,  380. 
«  Ilitt  V.  Lacy,  3  Alabama,  104;  Huff «;.  Mills,  7  Yerger,  42. 

[451] 


§  639        garnishee's  liability  as  a  debtor,   [ch.  xxxil 

nishee,  will  not  preclude  the  garnishee's  being  charged ; 
second,  that  where  the  action  is  pending  in  one  court 
and  the  garnishment  in  another,  and  the  courts  are  of 
different  jurisdictions,  that  which  was  first  instituted 
will  be  sustained ;  and,  third,  that  when  the  action  is  in 
such  a  situation  that  the  garnishee,  if  charged,  cannot 
avail  himself  of  the  judgment  in  attachment  as  a  bar  to 
a  recovery  in  the  action,  he  cannot  be  held  as  gar- 
nishee. What  w^ould  be  the  rule  where  the  courts  in 
which  the  proceedings  were  respectively  pending  were 
distinct,  but  coordinate,  and  established  by  the  same 
power,  has  not,  so  far  as  we  can  discover,  been  yet 
decided. 

§  638.  II.  Can  a  judgment  dehtor  he  held  as  garnishee  of 
the  judgment  creditor  ?  On  this  point  the  authorities 
differ.  Where,  as  in  New  Hampshire,  the  doctrine  is 
held  that  a  person  against  whom  suit  has  been  brought 
cannot  be  charged  as  garnishee ;  and  where,  as  in  Mas- 
sachusetts and  Vermont,  the  garnishee  in  such  case 
cannot  be  made  liable,  if  the  pending  action  be  in  such 
situation  that  the  garnishment  cannot  be  pleaded 
therein ;  and  where  the  judgment  is  in  one  court  and 
the  garnishment  in  another ;  it  might  be  expected  to 
be  decided  that  the  judgment  debtor  could  not  be 
charged  as  garnishee  of  the  judgment  creditor. 

§  639.  In  New  Hampshire  and  Vermont,  the  ques- 
tion has  not  directly  come  up,  though,  in  the  latter 
State,  the  court,  on  one  occasion,  used  language  which 
might  be  construed  to  authorize  the  garnishment  of  a 
judgment  debtor.  They  say,  —  "  The  statute  makes  all 
the  goods,  chattels,  rights,  or  credits  of  the  defendant 
[452] 


CH.  XXXII.]    garnishee's  lubility  as  a  debtor.        §  641 

in  the  hands  of  the  trustee  liable  for  the  debts  of  the 
defendant.  Hence,  if  the  trustee  is  indebted  to  the 
defendant,  he  is  liable  to  be  summoned  as  trustee  with- 
out regard  to  the  nature  of  the  indebtedness,  whether 
by  record,  specialty,  or  simple  contract.  No  exception 
is  made  whether  a  suit  is  depending  in  favor  of  the  de- 
fendant, or  whether  payable  or  not."  ^ 

§  640.  In  Massachusetts,  it  was  held,  in  IS 06,  that 
one  against  whom  an  execution  on  a  judgment  w^as  in 
the  hands  of  a  sheriff,  could  not  be  held  as  garnishee  of 
the  plaintiff  therein,  because  he  could  not  avoid  pay- 
ment of  the  execution  ;  ^  though  Parsons,  C.  J.,  in  de- 
livering the  opinion  of  the  court,  remarked,  that  "  there 
are  cases  in  which  a  debt  of  this  description  is  a  credit 
liable  to  attachment  by  force  of  the  statute."  In  a  sub- 
sequent case,  the  same  court  held  that  a  judgment 
debtor,  against  whom  an  execution  might  issue,  could 
not  be  charged  as  garnishee  of  the  judgment  creditor;^ 
Justice  Story,  in  a  case  which  came  before  the  Circuit 
Court  of  the  United  States  in  Rhode  Island,  held  the 
same  ground ;  ^  as  did  the  Supreme  Court  of  Xew  Jer- 
sey,^ and  that  of  Arkansas.*^ 

§  641.  On  the  other  side  we  find  the  courts  of  Con- 
necticut, Pennsylvania,  Delaware,  Mississippi,  and  In- 
diana.     In    the    first-named    State,    the    court    thus 


^  Trombly  v.  Clark,  13  Vermont,  118. 

*  Sharp  V.  Clark,  2  Mass.  91. 

*  Prescott  V.  Parker,  4  Mass.  1 70. 

*  Franklin  v.  ^Y^^vd,  3  Mason,  136. 

*  Shinn  v.  Zimmerman,  3  Zabriskie,  150. 

*  Trowbridge  v.  Means,  5  Arkansas,  135  ;  Tunstall  v.  Means,  Ibid.  700. 

[453] 


§  641  garnishee's    liability   as    a   debtor.      [cH.  XXXII. 

announced  its  views :  "  By  the  custom  of  London,  from 
which  our  foreign  attachment  system  was  principally 
derived,  it  is  said,  that  a  judgment  debt  cannot  be  at- 
tached ;  and  the  same  has  been  holden  by  the  courts  in 
Massachusetts.  A  fair,  and,  as  we  think,  very  obvious 
construction  of  our  statute  on  this  subject,  as  well  as 
the  general  policy  of  our  attachment  laws,  leads  us  to 
a  different  conclusion.  It  is  enacted  that '  where  debts 
are  due  from  an?/  person  to  an  absent  and  absconding 
debtor,  it  shall  be  lawful  for  any  creditor  to  bring  his 
action  against  such  absent  and  absconding  debtor,'  etc.; 
and  that  Uuif/  debt  due  from  such  debtor  to  the  defend- 
ant shall  be  secured  to  pay  such  judgment  as  the  plain- 
tiff shall  recover.'  The  provisions  of  this  statute  were 
extended,  in  1830,  to  the  attachment  of  debts  due  to 
such  persons  as  should  be  discharged  from  imprisonment. 
The  language  of  this  statute  clearly  embraces  judgment 
debts,  as  well  as  others ;  and  the  reason  and  equity  of 
it  are  equally  extensive.  A  judgment  debt  is  liqui- 
dated and  certain ;  and,  in  ordinary  cases,  little  oppor- 
tunity or  necessity  remains  for  controversy  respecting 
its  existence,  character,  or  amount.  The  policy  of  our 
laws  has  ever  required,  that  all  the  property  of  a  debtor 
not  exempted  by  law  from  execution,  should  be  subject 
to  the  demands  of  his  creditors ;  and  that  every  facility, 
consistent  with  the  reasonable  immunities  of  debtors, 
should  be  afforded  to  subject  such  property  to  legal 
process. 

"  It  is  true,  as  has  been  contended,  that  to  subject 
judgment  debts  to  attachment,  and  especially  those 
upon  \Vhich  executions  have  issued,  may,  in  some  cases, 
produce  inconvenience  and  embarrassment  to  debtors,, 
as  well  as  to  creditors.  Such  consequences  have  re- 
[454] 


CH.  XXXII.]    garnishee's  liability  as  a  debtor.         §  G42 

suited  from  the  operation  of  our  foreign  attachment 
system,  in  ordinary  cases;  and  this  was  foreseen  and 
has  been  known  to  our  legislators,  by  whom  this  sj-stem 
has  been  introduced,  continued,  and  extended ;  but  the 
general  interest  of  the  community  in  this  respect,  has 
been  considered  as  paramount  to  the  possible  and  oc- 
sional  inconveniences  to  which  individuals  may  be 
sometimes  subjected.  A  judgment  debtor,  in  such  cases, 
is  not  without  relief:  he  may  resort,  whenever  serious 
danger  or  loss  is  apprehended,  either  to  his  writ  of  au- 
dita querela,  or  to  the  powers  of  a  court  of  chancery  for 
appropriate  relief"  -^ 

§  642.  The  same  views  substantially  influenced  the 
courts  of  Pennsylvania,^  Delaware;^  Mississippi,^  and  In- 
diana,^ to  the  same  conclusion ;  and  while  there  is  much 
force  in  the  contrary  reasons,  it  is  difficult  to  lay  aside 
the  demands  of  public  policj^  in  favor  of  subjecting  all 
of  a  debtor's  effects,  save  such  as  the  law  expressly  ex- 
empts, to  the  payment  of  his  debts.  A  striking  illus- 
tration of  the  disadvantage  of  exempting  judgment 
debts  from  attachment,  would  be  in  a  case,  not  at  all 
improbable,  of  a  debtor  having  no  visible  property,  and 
no  debts  due  him  but  judgment  debts,  but  enough  of 
such  debts  to  pay  his  own  liabilities.  Upon  what  prin- 
ciple of  right  or  justice,  under  such  circumstances,  ought 
his  creditors  to  be  denied  access  by  this  process  to  the 
debts  thus  due  him?     Is  the  temporary  inconvenience 

^  Gager  v.  Watson,  11  Conn.  168. 

*  Crabb  v.  Jones,  2  Miles,  130;  Sweeny  v.  Allen,  1  Penn.  State,  380. 
'  Belcher  v.  Grubb,  4  Harrington,  4G1. 

*  Gray  v.  Henby,  1  Smedes  &  Marshall,  598. 
^  Halbert  v.  Stinson,  G  Blackford,  398. 

[455] 


§  643        garnishee's  liability  as  a  debtor,    [ch.  xxxil 

to  which  his  debtors  might  be  exposed,  sufficient  to  out- 
weigh all  the  considerations  in  favor  of  subjecting  them 
to  the  payment  of  debts,  without  the  payment  of  which 
a  fraud  may  be  perpetrated  in  defiance  of  law  ? 

§  643.  However  strongly  these  reasons  apply  to  the 
case  of  a  garnishment  of  the  judgment  debtor,  in  the 
same  court  in  which  the  judgment  was  rendered,  their 
force  is  lost  when  the  judgment  is  in  one  court  and  the 
garnishment  in  another.  There  a  new  question  springs 
up,  growing  out  of  the  conflict  of  jurisdiction  which  at 
once  takes  place.  Upon  what  ground  can  one  court 
assume  to  nullifj^  in  this  indirect  manner  the  judgments 
of  another  ?  Clearly  the  attempt  would  be  absurd,  es- 
pecially where  the  two  courts  were  of  different  jurisdic- 
tions, or  existed  under  different  governments.  Take, 
for  example,  the  case  of  a  court  of  law  attempting  to 
arrest  the  execution  of  a  decree  of  a  court  of  chancery 
for  the  payment  of  money,  by  garnishing  the  defend- 
ant ;  or  a  State  court  so  interfering  with  the  judgment 
of  a  Federal  court,  or  vice  versa :  —  it  is  not  to  be  sup- 
posed that,  in  either  case,  the  court  rendering  the  judg- 
ment or  decree  would  or  should  tolerate  so  violent  an 
encroachment  on  its  prerogatives  and  jurisdiction.  This 
question  arose  in  South  Carolina,  and  it  was  there  held 
that  where  the  fund  sought  to  be  reached  is  in  another 
court,  it  cannot  be  attached ;  ^  and  hence  that  a  judg- 
ment in  a  Federal  court  is  not  the  subject  of  attachment 
in  a  State  court.^ 


^  Young  V.  Young,  2  Hill,  S.  C,  426. 
-  Burrell  i\  Letson,  2  Spears,  378. 

[456] 


CHAPTER   XXXIII. 

OF  THE  AXSWER  OF  THE  GARNISHEE. 

§  644.  Ix  most  of  the  States,  the  manner  iu  which  a 
garnishee  responds  to  the  proceedings  against  him,  is 
by  answer  to  interrogatories  propomided  to  him.  By 
the  custom  of  London  the  garnishee  might  plead  that 
he  had  no  moneys  of  the  defendant  in  his  hands  at  the 
time  of  the  garnishment,  or  at  any  time  since,  and  put 
the  plaintiff  to  prove  any  money  in  his  hands ;  or  he 
might  discharge  the  attachment  by  waging  of  law,  that 
is,  coming  into  court  and  swearing  that,  at  the  time  of 
the  attachment  made,  or  at  any  time  since,  he  had  not, 
owed  not,  nor  did  detain,  nor  yet  has,  or  owes,  or  does 
detain  from  the  defendant  any  money.^  Pleading  to 
the  garnishment  is  still  practised  in  some  States,  but  in 
far  the  larger  number  the  better  mode  of  responding  by 
answer  is  established.  The  present  chapter  will,  there- 
fore, be  devoted  to  the  consideration  of  the  Answer  of 
THE  Garnishee.  This  subject  will  be  treated  under  the 
following  heads:  — 

I.  What  the  garnishee  may  be  required  to  state,  and 
may,  ex  mero  motu,  state  in  his  answer : 

II.  What  he  may  not  be  required  to  state  in  his  an- 
swer : 

^  Privilegia  Londini,  258. 

39  [ 457  ] 


§  646  ANSWER    OF    THE    GARNISHEE.  [CH.  XXXIII. 

III.  Of  amending  the  answer : 

IV.  The  effect  of  the  answer : 

V.  The  construction  to  be  given  to  the  answer : 

VI.  Of  judgment  on  the  answer. 

§  645.  I.  What  iJie  garnishee  may  he  required  to  state, 
and  maf/,  ex  mero  laoiu,  state  in  his  ansiver.  It  is  the 
duty  of  a  garnishee  to  state  with  entire  accuracy  and 
distinctness,  all  facts  ♦that  may  be  necessary  to  enable 
the  court  to  decide  intelligently  the  question  of  his  lia- 
bility. It  is  no  less  his  interest  to  do  so ;  for,  should 
the  defendant  subsequently  institute  an  action  against 
him  for  the  recovery  of  the  debt  or  property  in  respect 
of  which  the  garnishee  was  made  liable  as  such,  it  would 
be  of  first  importance  that  the  record  in  the  attachment 
suit  should  be  in  such  condition  as  to  show  conclusively 
the  ground  upon  which  the  garnishee  was  charged. 
And  for  the  want  of  such  accuracy  and  distinctness,  a 
garnishee  may  be  charged  when  he  ought  not  to  be,  or 
may  escape  liability  when  in  justice  he  should  be 
charged. 

§  646.  It  is  also  the  duty  of  a  garnishee  to  state  in 
his  answer  every  fact  within  his  knowledge  which  had 
destroyed  the  relation  of  debtor  and  creditor  previously 
existing  between  him  and  the  defendant.  If  he  fail  to 
disclose  a  fact  which,  if  disclosed,  would  have  prevented 
a  judgment  against  him,  he  cannot  afterwards  set  up 
that  judgment  in  bar  of  a  recovery  on  the  debt'  he 
owed  the  defendant,  and  which  he  knew  had  passed 
into  the  hands  of  a  third  person  before  he  answered  as 
garnishee.  Therefore,  where  A.  was  garnished  in  a  suit 
against  B.,  and  failed  in  his  answer  to  disclose  the  fact, 
[458] 


CH.  XXXril.]  ANSWER    OF    THE    GAENISHEE.  §  648 

which  was  known  to  him,  that  before  the  garnishment 
B.  had  apphecl  to  the  District  Court  of  the  United 
States  to  be  declared  a  bankrupt,  and  soon  after  was 
so  dechired  ;  and  judgment  was  accordingly  rendered 
against  A.  for  the  debt  he  confessed  to  be  owing  to  B. ; 
and  afterwards  he  was  sued  by  the  assignee  in  bank- 
ruptcy upon  the  debt,  and  set  up  as  a  defence  the  judg- 
ment rendered  against  him  as  garnishee  ;  it  was  held 
that,  having  in  his  answer  concealed,  or  omitted  to  give 
notice  of,  a  fact  which  he  was  bound  to  disclose,  and 
which  would  have  prevented  a  judgment  against  him, 
the  defence  was  unavailable.^ 

§  G47.  If  the  garnishee  was  not  indebted  to,  or  did 
not  hold  property  of,  the  defendant,  he  should  simply 
and  explicitly  so  declare.  If  he  be  in  doubt  whether 
inider  an  existing  state  of  facts  he  is  chargeable,  he 
should  state  all  the  essential  facts  with  minuteness  and 
precision,  and  leave  it  for  the  court  to  decide  the  ques- 
tion of  his  liability.  And  it  will  be  advisable  for  him 
to  take  the  same  course  whenever  his  liability  grows 
out  of  transactions  in  which  are  involved  a  multiplicity 
of  facts.  If  he  is  indebted  to  the  defendant  on  account 
of  a  single  transaction,  of  simple  contract,  —  which  is 
the  most  usual  case,  —  he  should,  in  like  manner,  state 
the  facts  out  of  which  his  indebtedness  arose. 

§  648.  In  all  cases  he  should  carefully  avoid  any 
evasion  or  equivocation,  for  an  evasive  answer  will  be 
treated  as  a  nullity,^  and  any  equivocation  would  sub- 


^  Nugent  V.  Opdyke,  9  Robinson  (La.)  453. 
^  Scales  V.  Swan,  9  Porter,  163. 

[459] 


§  650  ANSAVER   OF   THE   GARNISHEE.  [CH.  XXXffl. 

ject  the  whole  answer  to  suspicion.  He  should,  with 
equal  care,  avoid  admitting  himself  liable  as  garnishee 
when  in  fact  he  is  not,  for  when  he  has  once  made  such 
an  admission,  it  is  said  he  is  estopped  from  afterward 
denying  it.^ 

§  649.  The  important  points  to-be  attained  in  fram- 
ing a  garnishee's  answer  are,  fulness  and  explicitness. 
The  absence  from  an  answer  of  either  of  these  qualities 
might  in  many  cases  subject  the  garnishee  to  a  judg- 
ment against  him.  He  should  answer  every  pertinent 
interrogatory,  so  far  as  he  is  able,  if  not  in  his  power  to 
do  so  fully ;  otherwise  he  will  be  charged,  even  though 
he  should  declare  his  belief  that  he  has  in  his  hands 
nothing  of  the  defendant's  ;2  and  there  should  be  nothing 
doubtful  in  his  expressions ;  for,  on  the  ground  that  he 
might  have  used  expressions  in  which  there  should  have 
been  no  doubt,  those  of  a  doubtful  kind  will  be  con- 
strued against  him.^  The  full  extent  and  application 
of  this  last  rule  will  be  considered  under  the  fifth  head 
of  this  chapter. 

§  650.  When  the  answer  of  a  garnishee  shall  have 
come  up  to  the  foregoing  rules,  and  is  full  and  intelligi- 
ble in  reply  to  the  interrogatories  exhibited  against 
him,  the  court  will  protect  him  from  further  interroga- 
tories, in  relation  to  the  matters  embraced  in  his  an- 
swer.    Thus,  where  the  garnishee  stated  in  his  answer 


1  "Woodbridge  v.  Wintlirop,  1  Eoot,  557. 

2  Shaw  V.  Bunker,  2  Metcrdf,  376. 

3  Sebor  v.  Armstrong,  -4  Mass.  20G  ;  Cleveland  v.  Clap,  5  Ibid.  201 ;  Kelly 
r.  Bowman,  12  Pick.  383. 

[460] 


CH.  XXXm.]  ANSWER    OF   THE    GARNISHEE.  §  652 

that  ca  certain  sum  was  in  his  hands  which  had  been 
earned  by  the  defendant,  and  for  which  the  defendant 
had  drawn  an  order  on  him  payable  to  a  third  person  ; 
and  the  plaintiff  presented  an  additional  interrogatory, 
requiring  the  garnishee  to  ''state  distuictl>/  how  much 
money  was  in  his  hands  at  the  time  of  the  service  of 
the  writ  on  him,  which  had  been  earned  by  the  defend- 
ant ; "  the  court  held  that  the  garnishee  could  not  be 
charged  in  consequence  of  a  refusal  to  answer  this  inter- 
rogatory, because  it  merely  demanded  of  him  to  state 
distinctly  what  he  had  fully  stated  before.^ 

§  651.  It  is  not  necessary  to  the  fulness  and  explic- 
itness  of  a  garnishee's  answer,  that  it  should  be  con- 
formed to  the  technical  rules  of  pleading.  In  this  re- 
spect it  partakes  of  the  nature  of  an  answer  in  chancery. 
Thus,  where  a  garnishee  answered  that  he  owned  a  note 
of  the  defendant  for  an  amount  greater  than  his  indebt- 
edness to  the  defendant,  and  on  the  trial  offered  in  evi- 
dence an  instrument  in  all  respects  conformable  to  that 
described  in  the  answer,  save  that  it  was  a  bond  instead 
of  a  note,  it  was  held,  that  the  answer  was  substantially 
sustained  ;  and  that  it  was  of  no  consequence  that  the 
garnishee  had  failed,  in  describing  the  instrument,  to 
employ  the  proper  legal  terms.^ 

§  652.  While  it  will  be  required  of  a  garnishee  to 
answer  fully  and  intelligibly  all  pertinent  interrogato- 
ries put  to  him,  regard  will  still  be  had  to  the  circum- 
stances in  which  he  is  placed,  and  which  may  prevent 


1  Can-ifiue  v.  SIdcbottom,  3  Metcalf,  297. 
-  Asbby  V.  Watson,  9  Missouri,  235. 

39=^  [461] 


§  G53  ANSWER    OF    THE    GARNISHEE.  [CH.  XXXIII. 

as  full  and  positive  an  answer  as  would  be  desirable. 
If  the  answer  is  deficient  in  these  respects,  but  it  ap- 
pears that  the  garnishee  has  responded  as  fully  and 
positively  as  he  could,  he  will  not  be  charged  for  failing 
to  do  more.  Thus,  where  the  administrator  of  a  person, 
who,  in  his  lifetime  had  been  garnished,  answered  "to 
the  best  of  his  knowledge,"  it  was  held,  that,  though  the 
answer  might  not  be  sufficient,  if  it  had  come  from  one 
having  certain  knowledge  of  the  business,  yet  as  it 
could  not  be  expected  that  the  administrator  should  be 
possessed  of  the  same  degree  of  knowledge  as  the  intes- 
tate, and  the  answer  ajopeared  to  be  the  best  that  could 
be  obtained,  it  was  sufficient.^  So,  where  a  garnishee 
disclosed  that  the  defendant  had  ao-reed  to  build  a 
house  for  him,  and  he  had  agreed  to  pay  the  defendant 
certain  sums  at  certain  stages  of  the  work  ;  that  he  had 
generally  paid  before  the  instalments  became  due  ;  but 
that  he  had  no  means  of  ascertaining  whether,  at  the 
time  he  w^as  summoned,  the  payments  were  in  advance 
of  the  work  or  not ;  it  "vwas  held,  that  he  should  not  be 
charged ;  the  answer  appearing  to  be  as  definite  as  it 
could  be  made.^ 

§  653.  A  garnishee,  in  framing  his  answer,  need  not 
confine  himself  to  matters  within  his  own  knowledge, 
but  may  introduce  into  it  any  extrinsic  facts  which  he 
supposes  important  to  a  correct  determination  of  the 
question  of  his  liability,  or  in  reference  to  the  interests 
of  others.  Whether  such  fticts  will  afiect  the  issue,  will, 
of  course,  be  decided  by  the  court.     It  is  principally  in 


^  Ormsby  v.  Anson,  21  Maine,  23. 
"  Harris  v.  Aiken,  3  Pick.  1. 

[462] 


CH.  XXXIII.]  ANSWER    OF    THE    GARNISHEE.  §  654 

• 

regard  to  the  rights  of  third  persons,  not  parties  to  the 
proceedings,  that  the  introduction  of  such  facts  is  de- 
sirable. They  would  often  be  ^Yithout  protection  un- 
less the  garnishee  were  at  liberty  thus  to  bring  their 
rio'hts  under  the  cog;nizance  of  the  court.  The  extrin- 
sic  facts  thus  introduced  ma}^  be  of  almost  any  descrip- 
tion. They  may  consist  of  writings,  or  verbal  communi- 
cations, or  affidavits  proceeding  from  third  persons,  and 
having  reference  to  the  question  of  his  liability  as  gar- 
nishee. 

§  654.  Thus,  a  garnishee  answered  that  he  had  exe- 
cuted a  bond  to  the  defendant,  conditioned  for  the  pay- 
ment to  him  of  §1,000,  in  one  year  after  the  death  of 
the  defendant's  mother,  and  that  he  should  pay  the  an- 
nual interest  on  that  sum  to  the  mother  during  her 
life ;  that  he  was  informed,  at  the  time  of  executing 
the  bond,  and  had  reason  to  believe,  that  it  was  origi- 
nally taken  by  the  defendant  for  the  use  of  himself,  his 
brother,  two  sisters,  and  a  minor  child  of  a  deceased 
brother,  the  heirs  at  law  of  the  defendant's  mother; 
that  the  mother  had  died ;  that  the  defendant  after  her 
death  drew  an  order  on  the  garnishee  for  $520,  stating 
that  sum  to  be  in  full  for  his  part  of  the  bond  ;  and  that 
in  the  letter  to  the  drawee,  covering  the  order,  the  de- 
fendant said  that  the  other  part  of  the  bond  belonged 
to  the  other  heirs  of  his  mother ;  and  the  order  and 
letter  were  annexed  to  and  made  part  of  the  answer. 
It  was  objected  that  these  documents  could  not  be  re- 
ceived as  part  of  the  answer;  but  the  objection  was 
overruled,  on  the  ground  that  if  it  were  not  competent 
to  the  garnishee  to  disclose  any  thing  but  what  is  within 
his  own  personal  knowledge,  the  interests  and  rights  of 

[463] 


§  655  ANSWER    OF   THE    GARNISHEE.  [CH.  XXXIII. 

cestids  que  trust  would  be  in  great  jeopardy ;  for  their 
property  would  go  to  pay  the  debts  of  the  trustee,  and 
he  might  be  wholly  unable  to  respond.-^  So,  where 
a  garnishee  offered  as  a  part  of  his  answer,  certain  affi- 
davits of  third  persons,  the  court  held  them  admissible, 
and  laid  down  the  broad  proposition  that  a  garnishee 
might  refer  to  letters,  statements,  assignments,  or  other 
instruments  and  documents,  and  adopting  them,  make 
them  part  of  his  answer.^ 

§  655.  In  all  such  cases,  however,  it  is  considered,  in 
Massachusetts,  where  the  answer  is  conclusive,  and 
cannot  be  controverted,  that  the  extrinsic  facts  thus 
brought  into  the  answer  have  no  force  in  themselves, 
but  only  so  far  as  the  garnishee  may  declare  his  belief 
in  their  truth.  They  are  received  on  the  authority  of 
his  oath.  If  he  does  not  believe  them  to  be  true,  he 
ought  not  to  make  them  part  of  his  answer.  If  he 
makes  them  a  part  of  his  answer,  and  at  the  same  time 
states  his  disbelief  of  their  truth,  the  answer  would  so 
far  be  nugatory.  Hence  it  is  not  alone  the  facts  them- 
selves, but  the  garnishee's  adoption  of  them  and  belief 
in  their  truth,  that  gives  them  weight  in  the  question 
of  his  liability.^  Therefore,  an  affidavit  made  by  a  per- 
son interested  in  the  suit  will  be  received,  when  made 
a  part  of  the  garnishee's  answer,  because  it  is  received 
on  the  garnishee's  oath,  and  not  as  the  testimony  of  a 
witness.'^ 


1  Willard  v.  Sturtev^int,  7  Pick.  194. 
^  Kelly  V.  Bowman,  12  Pick.  383. 

Hawes  v.  Langton,  8  Pick.  67  ;  Kelly  v.  Bowman,  12  Ibid.  383. 

Kelly  V.  Bowman,  12  Pick.  383. 
[464] 


CH.  XXXIII.]  ANSWER    OF    THE    GARXISHEE.  §  658 

§  G56.  But  wliere,  on  the  examination  of  a  garnishee, 
a  letter  was  shown  him  from  a  third  person  not  a  party 
to  the  suit,  for  the  purpose  of  estabhshing  that  the 
property  in  the  garnishee's  hands  was  not  the  defend- 
ant's but  another's,  and  the  garnishee  authenticated  the 
signature- to  the  letter,  but  said  nothing  of  its  contents; 
the  court  refused  to  receive  the  letter  as  a  part  of  his 
answer,  because,  though  its  genuineness  was  established, 
its  contents  might  be  untrue,  and  could  not  be  pre- 
sumed to  be  true.-^ 

§  657.  It  has  been  attempted  to  screen  garnishees 
from  answering  interrogatories,  a  response  to  which 
might  show  them  to  have  been  parties  to  fraudulent 
sales  or  dispositions  of  j)ersonal  property ;  but  so  far 
the  courts  have  sustained  such  questions  and  required 
disclosures,  even  though  the  effect  might  be  to  subject 
the  garnishee  to  liability  as  such  out  of  his  own  prop- 
erty.2 

§  658.  II.  What  the  garnishee  may  not  he  required  to 
date  in  his  answer.  A  very  wide  latitude  of  interroga- 
tory is  usually  allow^ed,  in  endeavoring  to  ascertain 
whether  the  garnishee  can  be  made  liable.  Almost 
every  variety  of  question  bearing  upon  this  point  may 
be  propounded,  and  an  answer  compelled.  Still  there 
must  be  a  limit  to  this  power  of  inquisition.  In  what 
respects,  or  to  what  extent,  the  plaintiff's  rights  in  this 
particular  shall  be  restrained,  has  not,  in  many  instances, 
been  the  subject  of  adjudication. 


^  Staekpole  r.  Ne-vrman,  4  Mass.  85. 

*  Devoll  V.  Brownell,  5  Pick.  448  ;  Xeally  v.  Ambrose,  21  Ibid.  185. 

[465] 


•  §  660  ANSWER   OF   THE    GARNISHEE.  [CH.  XXXIII. 

§  6-59.  All  interrogatories  must,  however,  be  confined 
to  such  matters  as  the  law  by  which  they  are  author- 
ized contemplates  as  the  ground  of  a  garnishee's  liabil- 
ity. Thus,  where  a  statute  authorized  the  plaintiff  to 
exhibit  interrogatories  touching  the  estate  and  effects 
of  the  defendant  in  possession  or  charge  of  the  gar- 
nishee, or  debts  due  and  owing  from  him  to  the  defend- 
ant, and  one  who  held  the  office  of  justice  of  the  peace 
was  garnished,  and  the  question  was  put  to  him  how 
many  judgments  were  entered  on  his  docket  in  favor  of 
the  attachment  defendant,  and  when,  against  whom, 
and  for  what  amount  they  were  respectively  entered ; 
it  was  held  that  the  question  was  illegal,  and  not  such 
as  the  garnishee  was  bound  to  answer.^ 

§  660.  Every  court  will  of  course  protect  the  gar- 
nishee from  impertinent  and  vexatious  questions,  espec- 
ially after  he  has  fully  answered.  Hence,  where  a 
garnishee  had  so  answered,  and  the  plaintiff  put  further 
interrogatories,  requiring  him  to  state  whether  he  had 
not,  in  conversation  with  third  persons,  said  differently 
from  the  statements  of  his  answer,  the  court  declared 
that  the  plaintiff  had  no  right  to  ask  questions  for  the 
purpose  of  discrediting  the  garnishee's  disclosures ;  that 
the  plaintiff  was  bound  to  take  the  garnishee's  state- 
ments under  oath  as  truth,  and  could  neither  impeach 
his  character  nor  contradict  his  testimony ;  that  there- 
fore he  was  not  entitled  to  the  privilege  of  cross-exam- 
ination ;  and  that  what  the  garnishee  might  have  told 


^  Corbyn  v.  Bollman,  4  TVatts  &  Sergeant,  342 ;  Lyman  v.  Parker,  33 
Maine,  31. 

[466] 


CH,  XXXIII.]  ANSAVER    OF   THE   GARNISHEE.  §  G63 

other  persons,  or  said,  on  former  occasions,  is  immate- 
rial and  not  a  proper  subject  of  inquiry.^ 

§  G61.  It  may  be  regarded  as  a  sound  rule  that  a 
garnishee  shall  not  be  required  to  state  in  his  answer 
any  thing  that  will  deprive  him  of  a  defence  against 
the  debt  to  the  defendant,  which,  if  he  were  sued  by 
the  defendant,  he  might  set  up  in  bar  of  the  action. 
Thus,  w^here  a  garnishee  answered,  that,  more  than 
twenty  years  before  he  was  summoned,  he  had  given  a 
bond  to  the  defendant,  payable  on  demand,  the  point 
was  made  whether  he  could  be  asked  if  he  had  paid 
the  bond ;  and  the  court  would  not  suffer  the  question 
to  be  put,  because  that  would  be  to  make  him  give  up 
a  defence  he  would  have  if  sued  by  the  defendant ; 
when  he  might  plead  payment  and  rely  on  the  lapse  of 
time  to  support  the  plea.^ 

§  662.  It  seems  to  be  settled  by  authority,  and  con- 
sonant Avith  sound  principles,  that  a  garnishee  shall  not 
be  required  to  state  any  thing  in  his  answer  which  will 
show  him  to  have  been  guilty  of  a  violation  of  law. 
Thus,  where  a  garnishee  was  asked  whether  he  had  not 
received  usurious  interest  of  the  defendant,  it  was  held 
that  he  could  not  answer  affirmatively  without  crimi- 
nating himself,  and  therefore  should  not  be  required  to 
respond  to  the  interrogatory.^ 

§  663.   It  has  also  been  held  in  Massachusetts,  that  a 


1  Grossman  i-.  Grossman,  21  Pick.  21. 

2  Gee  V.  AVarwick,  2  Haywood,  N.  C.  358. 
*  Boardman  v.  Hoe,  13  Mass.  104. 

[467] 


§  664  ANSWER    OF   THE    GARNISHEE.  [ciL  XXXIII. 

garnisliee  shall  not  be  compelled  to  state  any  thing 
which  might  tend  to  impair  or  impeach  his  title  to  real 
estate  which  he  derived  from  the  defendant.-^  In  New 
Hampshire,  however,  the  contrary  doctrine  was  held, 
in  a  case  where  the  garnishee  stated  in  his  answer  a 
conveyance  of  real  estate  to  him  by  the  defendant,  and 
the  court  required  an  answer  to  supplementary  inter- 
rogatories intended  to  show  the  conveyance  to  have 
been  made  without  consideration.^ 

§  664.  AVhere,  however,  the  garnishee  disclosed  a 
conveyance  of  real  estate  by  the  defendant  to  him,  it 
was  decided  that  the  following  question  might  be  put 
to  him :  "  Is  there  any  real  estate  in  your  possession, 
belonging  to  the  defendants,  which  you  hold  in  trust 
for  them,  so  that  you  are  accountable  for  the  rents  and 
profits  thereof?  or  are  you  under  any  obligation  to 
account  for  the  proceeds  of  the  same,  or  of  any  part 
thereof,  if  sold  b}^  you  ?  "^  And  in  a  case,  where  it  was 
alleged  that  real  estate  conveyed  by  the  defendant  to 
the  garnishee  was  held  in  trust  to  be  disposed  of  for  the 
benefit  of  the  latter,  the  court  decided  that  the  gar- 
nishee might  be  required  to  answer  the  following  ques- 
tion :  "At  the  time  you  received  a  deed  or  deeds  of  land 
from  the  defendant,  or  at  any  other  time  since,  was  there 
any  agreement  in  writing  or  by  parol,  that  you  should 
dispose  of  the  same  and  account  to  him  in  any  manner 
for  the  proceeds?"  —  and  that,  in  the  event  of  the 
question  being  answered  in  the  affirmative,  there  might 


^  Boardman  v.  Roe,  13  Mass.  104  ;  Russell  v.  Lewis,  15  Ibid.  127. 
2  Bell  ('.  Kendrick,  8  New  Hamp.  520. 
^  Russell  V.  Lewis,  15  Mass,  127. 

[468] 


en.  XXXIII.]  ANSWER    OF   THE    GARXISHEE.  §  666 

be  a  further  examination  as  to  the  disposition-  of  the 
proceeds.^ 

§  665.  The  extent  to  which  privileged  communica- 
tions to  a  garnishee  are  protected  from  the  searching 
scrutiny  of  a  plaintiff's  interrogatories,  seems  not  to 
have  been  the  subject  of  adjudication.  A  question 
somewhat  of  that  character  was  raised  in  Louisiana,  but 
did  not  lead  to  the  expression  of  any  opinion  by  the 
court  on  the  general  subject.  An  attorney  a^law  was 
garnished,  and  answered  that  he  had  received  a  sum  of 
money  on  account  of  the  defendant,  whose  attorney  he 
was,  but  added  that  he  had  almost  immediately  paid  it 
over  according  to  his  client's  instructions.  "When  ques- 
tioned as  to  when  and  to  whom  he  paid  it,  he  refused 
to  answer ;  contending  that  he  could  not  answer  with- 
out disclosing  matters  and  instructions  confided  to  him 
in  professional  confidence.  But  the  court  held  that  the 
disclosure  could  not  be  objected  to  on  that  ground,  as 
the  time  of  payment  was  within  his  knowledge,  inde- 
pendently of  any  communication  he  might  have  re- 
ceived from  his  client;  and  enforced  its  opinion  with 
some  instructive  remarks  about  "  a  barefaced  resort  to 
such  shameful  evasions  under  the  pretence  of  a  scrupu- 
lous regard  for  professional  obligations."^ 

§  666.  "We  have  seen  that  a  garnishee  may  make  the 
statements  of  others  a  part  of  his  answer,  and  that, 
when  so  made,  they  will  be  received  and  considered. 


^  Hazen  r.  Emerson,  9  Pick.  144. 

*  Comstock  V.  Paie,  18  Louisiana,  470. 

40  [469] 


§  667  ANSWER    OF    THE    GARNISHEE.  [CH.  XXXIII. 

It  is,  however,  entirely  at  his  option  to  incorporate  such 
statements  in  his  answer,  and  the  court  will  not  compel 
him  to  do  so  against  his  will.  Therefore,  where  the 
plaintiff  dehvered  to  the  garnishee  an  allidavit  of  the 
defendant  touching  the  effects  in  the  garnishee's  hands, 
and  tending  to  subject  them  to  the  attachment,  and  re- 
quested the  garnishee  to  make  the  aflidavit  a  part  of 
his  answer,  which  was  refused  ;  the  court  decided  that 
it  had  no  power  to  compel  a  compliance  with  the  plain- 
tiff's demand.^ 

§  667.  III.  Of  amending  the  anstver  of  a  garnislicc. 
The  propriety  of  allowing  a  garnishee  to  amend  his  an- 
swer, or  to  put  in  a  new  answer,  has  in  several  instances 
been  the  subject  of  discussion,  and  it  has  uniformly  been 
sustained.  There  is,  indeed,  no  sufficient  reason  why 
an  amendment  in  such  case  should  not  be  permitted. 
There  may  be  many  cases,  where  the  garnishee  discov- 
ers new  facts,  or  where  he  finds  that  he  has  made  an 
imperfect  or  erroneous  statement ;  and  there  seems  to 
be  nothing  in  principle,  to  prevent  h,im,  before  final 
judgment,  from  making  a  more  complete,  perfect,  and 
correct  answer,  being  responsible  as  in  all  other  cases 
for  its  truth.  The  only  objection  which  could  arise,  is, 
that  a  garnishee  might  be  induced  by  new  suggestions 
and  new  views,  to  put  in  an  answer,  varying  from  his 
first  answer,  and  not  true  in  itself  But  when  it  is  con- 
sidered, that  by  any  mode  of  administering  the  law,  the 
garnishee  may  take  his  own  time  and  his  own  counsel, 
and  make  such  answer  as  he  will,  there  seems  to  be  no 


^  'Hawes  V.  Langton,  8  Pick.  67  ;  Kelly  v.  Bowman,  12  Ibid.  383. 

[470] 


Cn.  XXXIII.]  AJs^SWER    OF   THE    GARNISHEE.  §  669 

more  clanger  of  falsification  in  the  one  case  than  in  the 
other.^ 

§  668.  IV.  The  effect  to  he  given  to  the  garnishee's  an- 
swer. This  depends  in  a  great  measure  on  the  statutory 
provisions  of  each  State.  In  some  States  the  answer  is 
conclusive;  in  others,  it  may  be  controverted.  In 
either  case,  however,  as  to  all  statements  of  fact,  given 
on  the  garnishee's  personal  knowledge,  as  well  as  to  all 
declarations  of  his  belief  of  facts  derived  from  informa- 
tion, the  answer  is  taken  to  be  true;^  in  the  former 
class  of  States,  conclusively  so;  in  the  latter,  subject  to 
be  disproved  by  competent  evidence. 

§  660.  In  Massachusetts,  the  garnishee's  liability  for- 
merly turned  entirely  upon  his  answer,  and  evidence 
collateral  thereto  was  not  admitted;'^  and  so  stringent 
was  this  rule,  that  an  agreed  statement  of  facts,  signed 
by  the  garnishee,  but  not  sworn  to,  and  submitted  by 
the  plaintifl',  defendant,  and  garnishee,  for  the  decision 
of  the  court,  as  to  the  liability  of  the  latter,  was  rejected 
by  the  court.^  In  the  Revised  Statutes  of  18.%,  ch. 
109,  §  15,  there  is  a  slight  modification  of  the  strict  rule 
which  had  prevailed,  in  that,  while  it  declares  the  an- 
swers and  statements  of  the  garnishee  shall  be  consid- 
ered as  true,  in  deciding  how  far  he  is  chargeable,  it 


1  Hovey  v.  Crane,  12  Tick.  167  ;  Carrique  i'.  Sidebottom,  3  Metcalf,  297  ; 
Buford  V.  Welborn,  6  Alabama,  81S;  Neilson  r.  Scott,  cited  in  1  Rice's  Di- 
gest of  South  Carolina  Reports,  80 ;  Murrell  v.  Johnson,  3  Hill,  S.  C.  12. 

^  Grossman  i'.  Crossman,  21  Pick.  21. 

^  Comstock  V.  Farnum,  2  Mass.  96 ;  Stack  pole  v.  Newman,  4  Ibid.  85  ; 
Ilawes  r.  Langton,  8  Pick.  67. 

*  Barker  i".  Taber,  4  Mass.  81. 

[471] 


§  G71  ANSWER    OF   THE    GARNISHEE.  [CH.  XXXIII. 

allows  either  party  to  allege  and  prove  any  other  foots, 
not  stated  nor  denied  hy  the  [/arnishee,  tliat  may  be  material 
in  deciding  that  question.  In  Maine,  and  in  Tennessee, 
the  garnishee's  liability  is  determined  solely  by  his 
answer.^ 

§  670.  In  most  of  the  other  States  the  answer  is 
taken  to  be  true,  but  is  subject  to  be  controverted  and 
disproved.  The  effect  given  to  it  in  this  respect,  is, 
however,  confined  to  its  statements  of  facts.  If  the  gar- 
nishee sets  up  rights  or  draws  conclusions,  arising  out 
of  or  resulting  from  the  facts  stated,  such  rights  and 
conclusions  are  necessarily  subject  to  revision  by  the 
court.'-^  In  Alabama,  the  answer  is  taken  to  be  strictly 
true,  and. if  a  deed  is  appended  to  it,  it  is  to  be  consid- 
ered genuine,  unless  the  answer  be  traversed.'^  In  Mis- 
souri,* Illinois,''  and  Arkansas,''  the  same  effect  is  given 
to  the  answer  until  it  is  disproved. 

§  671.  In  ascertaining  the  effect  to  be  given  to  an 
answer,  when  assailed  by  opposing  testimony,  but  few 
cases  can  be  found.  In  Illinois,  the  question  came  up, 
and  it  was  held  that  the  answer  is  not  entitled  to  have 
the  same  effect  as  that  of  a  defendant  to  a  bill  in  chan- 
cery, requiring  the  testimony  of  two  witnesses,  or  what 
may  be  equivalent,  to  overthrow^  it,  but  is  to  be  consid- 


^  Lamb  v.  Franklin  Manuf.  Co.,  18  Maine,  187;   Cbeatham  v.  Trotter, 
Peck,  198  ;  Childress  v.  DIckins,  8  Yerger,  113. 
-  Lamb  r.  Franklin  Mannf.  Co.,  18  Maine,  187. 
^  Robinson  v.  Smith,  2  Stewart,  86. 

*  Davis  V.  Knapp,  8  Missouri,  657. 

*  Kergin  v.  Dawson,  6  Illinois  (1  Oilman)  86. 

^  Mason  v.  McCampbell,  2  Arkansas,  (2  Pike)  506. 

[472] 


CH.  XXXIII.]  ANSWER    OF   THE   GARNISHEE.  §  671 

ered  as  presenting  &.  prima  facie  defence,  liable  to  be  re- 
butted by  preponderating  testimony.^  In  Missouri,  it 
lias  been  held  that  evidence  of  the  garnishee's  admis- 
sions, in  conversation,  either  before  or  after  the  answer 
is  sworn  to,  may  be  given  to  disprove  the  statements  of 
his  answer.^  But  declarations  of  the  defendant  are  not 
admissible  as  evidence  for  the  plaintiff  against  the  gar- 
nishee;^ In  Pennsylvania,  where,  under  the  statute  of 
1789,  the  garnishee  was  held  to  be  chargeable  nniil  he 
discharged  himself,  at  least  by  his  own  oath,  it  was  con- 
sidered that  the  answer  \s  prima  facie  sufficient,  but  that 
its  truth  might  be  inquired  into  by  the  jury ;  and  that 
the  plaintifi'  makes  out  his  case  merely  by  destroying 
the  effect  of  the  answer,  unless  the  garnishee  maintains 
the  issue  by  other  satisfactory  evidence ;  and  this  the 
plaintiff  may  do  by  disproving  the  matter  alleged  in  the 
answer,  or  by  showing  the. garnishee  to  be  utterly  un- 
worthy of  credit.  On  this  principle,  evidence  which 
falsifies  any  fact  asserted  in  the  answer,  goes  to  the 
credibility  of  the  garnishee,  and  is  therefore  competent."^ 
In  Mississippi,  it  is  ruled  that  where  the  truth  of  the 
answer  is  denied,  it  cannot  be  read  to  the  jury  impan- 
elled to  try  the  issue.^  If,  however,  upon  such  a  trial 
the  plaintiff  reads  the  answer  to  the  jury,  it  must  be 
taken  ixs  prima  facie  evidence,  not  requiring  of  the  gar- 
nishee other  proof  to  establish  it.^ 


*  Kergin  v.  Dawson,  G  Illinois  (1  Gilman)  86. 

*  Stevens  V.  Gwathmey,  9  Missouri,  63G. 
'  Enos  i'.  Tuttle,  3  Conn.  247. 

*  Adlum  f.  Yard,  1  Rawle,  163. 

^  Lasley  v.  Sisloff,  7  Howard  (Mi.)  157. 

*  Erskine  r.  Sangston,  7  Watts,  150. 

40*  [473] 


§  G73  ANSWER    OF    THE    GARNISHEE.  [ciI.  XXXIII. 

§  G72.  Y.  The  comtnidion  to  he  given  to  ihe  garnishee's 
ansH'cr.  The  necessity  of  fulness  and  cxplicitness  in 
the  garnishee's  answer,  j^reviouj^ly  adverted  to,  is  illus- 
trated and  enforced  by  the  rule  which  has  obtained  in 
Massachusetts,  in  relation  to  doubtful  expressions  con- 
tained in  an  answer.  We  will  trace  the  rise  and  pro- 
ixress  of  this  rule  from  its  first  announcement  to  the 
present  time. 

§  673.  The  matter  came  np  at  an  early  day  in  a  case 
-svhere  the  liability  of  the  garnishee  turned  on  the  point 
■whether  a  draft  drawn  on,  and  accepted  l)y  him,  in  favor 
of  the  defendant,  -was  negotiable.  If  it  was,  he  could 
not,  under  the  statute,  be  charged ;  otherwise  he  could. 
In  his  answer  he  stated  bis  acceptance  of  the  draft,  and 
that  he  thought  it  w'as  payable  to  the  defendant  or  order. 
"But,"  said  the  court,  "he  must  be  positive  as  to  this 
fact.  He  has  had  time  to  inquire,  and  he  does  not 
move  the  court  for  leave  to  make  any  further  declara- 
tion on  this  point.  If  he,  in  whose  knowledge  the  fact 
ought  to  be,  is  doubtful,  the  court  cannot  make  any 
presumption  in  his  favor."  ^  In  the  next  case  the  court 
go  a  step  further,  and  say, "  if  the  statement  in  any  part 
be  doubtful,  we  must  construe  it  against  the  trustees, 
who  might  have  used  expressions  in  which  there  should 
be  no  doubt."  ^  Again  the  court  say,  "  the  answ^er  of  a 
trustee  being  his  own  language,  must  unquestionably 
in  all  cases  be  construed  most  strongly  against  himself. 
But  his  lano;uao:e  is  not  to  be  distorted  nor  forced  into 


^  Sebor  v.  Armstrong,  4  Mass.  206. 
^  Cleveland  v.  Clap,  5  Mass.  201. 

[474] 


CII.  XXXIII.]  ANSWER    OF   THE    GARNISHEE.  §  675 

any  unnatural  construction;  nor  can  inferences  be 
drawn  from  any  real  or  suj^posed  discrepancies  in  his 
answers,  against  the  fair  and  natural  import  of  the  lan- 
guage taken  altogether."  ^  The  rules  laid  down  in  these 
cases  were  applied  by  the  same  court  to  a  case  where 
the  question  of  the  garnishee's  liability  turned  on  a 
statement  in  his  answer  with  regard  to  the  disposition 
made  of  certain  provisions,  the  mod  of  which,  he  said, 
had  been  consumed  in  a  particular  way.  If  they  had 
all  been  so  consumed  the  garnishee  Avould  not  be 
charged;  otherwise  he  might  be.  The  court  adjudged 
him  liable,  because  he  did  not  answer  with  sufficient 
precision,  when  it  was  in  his  power  to  have  done  so.^ 

§  G74.  Subsequently  the  rule  was  limited  in  its  ap- 
plication to  cases  where  the  garnishee,  in  some  part  of 
his  answer,  makes  statements,  which,  unexplained,  would 
prima  facie  subject  him  to  liability.^  The  last  case  cited 
seems  to  be  one  of  this  character.  There  the  garnishee 
-^'n^  prima  facie  liable,  and  endeavored  to  avoid  liability 
by  a  statement  concerning  the  provisions  in  his  hands. 
That  statement  being  deficient  in  precision  and  fulness, 
the  court  would  not  receive  it  as  a  protection  against 
the  prima  facie  liabiUty  appearing  by  the  answer. 

§  675.  This  subject  elicited  from  the  late  Justice 
Story  the  following  judicious  remarks,  which,  though 
applicable  to  the  peculiar  system  of  Maine,  will  be  re- 
garded favorably  in  all  cases  where  the  question  of  the 


1  Kelly  1-.  Bowman,  12  Pick.  383  ;  United  States  r.  Langton,  5  :Mason,  280. 
«  Graves  v.  Walker,  21  Pick.  I(i0. 
»  Shearer  r.  Handy,  22  Pick.  417. 

[  475  ] 


§  G75  ANSWER    OF    THE    GARNISHEE.  [CH.  XXXIII. 

garnishee's  liability  is  to  be  decided  by  the  terms  of  his 
answer.  "  It  is  said  that  \vhere  parties,  summoned  as 
trustees,  fail  to  discharge  themselves  by  any  ambiguity 
in  their  disclosures,  they  are  to  be  adjugdcd  trustees. 
That  proposition  requires  many  qualifications,  and  may 
be  true  or  not,  according  to  circumstances.  If  upon  the 
disclosure  it  is  clear  that  there  are  goods,  effects,  or 
credits  of  the  debtor  in  the  hands  of  a  trustee,  but  it  is 
left  uncertain  by  the  disclosure,  whether  the  goods, 
effects,  or  credits  are  affected  by  interests,  liens,  or 
claims  of  third  persons  or  not,  and  the  trustee  has 
knowledge  of  all  the  facts,  and  withholds  them,  or  evades 
a  full  examination ;  that  may  furnish  a  good  ground  to 
presume  every  thing  against  him,  so  far  as  there  are 
ambiguities.  But  if  he  fully  and  clearly  discloses  all  he 
knows,  and  upon  the  whole  evidence  it  is  left  in  reason- 
able doubt,  whether  under  all  the  circumstances,  he  be 
trustee  or  not ;  in  such  case,  I  apprehend,  he  is  entitled 
to  be  discharged.  A  different  doctrine  would  be  most 
perilous  to  the  supposed  trustee ;  because  he  possesses 
no  power  to  compel  disclosures  from  third  persons  rel- 
ative to  the  property ;  and  no  extraneous  or  collateral 
evidence  of  third  persons  is  admissible  in  the  suit,  to 
establish  or  discharge  his  liability.  It  is  to  be  decided 
solely  and  exclusively  by  his  answer.  He  might,  upon 
any  other  doctrine,  be  innocently  compelled  to  pay 
over  the  same  property  tAvice  to  different  persons  hold- 
ing adverse  rights,  because  he  might  be  without  any 
adequate  means  of  self-protection.  The  law,  therefore, 
will  not  adjudge  him  a  trustee,  except  upon  clear  and 
determinate  evidence  drawn  from  his  own  answers."  ^ 

^  Gordon  v.  Coolidge,  1  Sumner,  537. 

[476] 


CH.  XXXIII.]  ANSWER    OF   THE    GARNISHEE.  §  676 

In  another  case  the  same  eminent  jurist  said  —  "  I  agree 
that  doubtful  expressions  may  be  construed  most 
strongly  against  the  trustees,  if  they  admit  of  two  in- 
terpretations; but  they  are  not  to  he  tortured  into  an 
adverse  meaning  or  admission.  The  answers  are  not 
to  be  more  rigidly,  or  differently  construed  from  what 
they  would  be  in  a  bill  in  chancery.  If  the  answers  are 
not  full,  the  plaintiff  is  at  liberty  to  propound  closer  in- 
terrogatories;  but  he  is  not  to  charge  parties  upon  a 
mere°slip  or  mistake  of  certainty,  or  because  they  do 
not  positively  answer,  what  in  conscience  they  do  not 
positively  know."  ^ 

§  GT6.  VI.  Of  judgment  on  ihc  garnishee's  ansiver. 
Where  the  garnishee's  liability  is  to  be  determined  by 
his  answer,  either  because  it  is  by  law  conclusive,  or  be- 
cause the  plaintiff  does  not  see  proper  to  controvert  its 
statements,  the  rules  governing  the  judgment  to  be 
rendered  thereon  are  few  and  simple.  They  may  be 
brietly  stated  thus  :  — 

1.  Where  the  garnishee  admits  a  debt  to,  or  the  pos- 
session of  attachable  property  of,  the  defendant,  a  judg- 
ment is  rendered  against  him  as  a  matter  of  course, 
after  judgment  shall  have  first  been  given  against  the 

defendant. 

2.  Where  there  is  no  express  admission  of  that  kind, 
but  still  from  the  statements  of  the  answer  indebted- 
ness to,  or  the  possession  of  attachable  property  of,  the 
defendant,  clearly  appears,  judgment  should  go  against 
the  garnishee.^ 

1  United  States  r.  Langton,  5  Mason,  280. 

"-  Baker  v.  Moody,  1  Alabama,  315 ;  Mann  v.  Buford,  3  Ibid.  312. 

[477] 


§  G70  ANSWER    OF   THE    GARNISHEE.  [cil.  XXXIII. 

3.  Where  the  garnishee  denies  being  indebted  to,  or 
having  in  his  possession  attachable  property  of,  the  de- 
fendant, judgment  must  be  rendered  in  his  favor,  un- 
less, from  the  statements  of  the  answer,  it  appear  that 
the  denial  is  untrue ;  in  which  case  the  denial  will  be 
disregarded  and  judgment  rendered  against  him.^ 

4.  Where  he  neither  expressly  admits  nor  denies  his 
liability,  but  states  all  the  facts,  and  leaves  the  court  to 
decide  the  matter  of  law  arising  thereon,  there  can  be 
no  judgment  against  him,  unless  there  clearly  appear 
on  the  face  of  those  facts  sufficient  to  justify  the  court 
in  pronouncing  such  judgment.^  If  it  be  left  in  reason- 
able doubt  whether  he  is  chargeable  or  not,  he  is  enti- 
tled to  a  judgment  in  his  favor.^ 


^  "Wright  V.  Foord,  5  New  llamp.  1 78  ;  Ferine   r.  George,  5  Alabama, 
644;  Jones  v.  Howell,  IG  Ibid.  G9">. 

*  Unitcil  States  v.  Langton,  5  ^Mason,  280. 
'  Gordon  v.  Coolldgc,  1  Sumner,  537. 

[478] 


CHAPTER    XXXIV. 

EXTENT   OF  THE   GARNISHEE'S   LIABILITY,   AS   TO   AMOUNT,  AND   AS 
TO    THE   TIME    TO    AVHICII    THE    GAUNISUMENT   RELATES. 

§  G77.  As  an  attaching  creditor  can  acquire,  through 
the  attachment,  no  greater  rights  against  the  garnishee 
than  the  defendant  has,  except  in  cases  of  fraud,  it  fol- 
lows that  the  extent  of  the  garnishee's  liahility  is  to  he 
determined  by  the  value  of  the  defendant's  property  in 
his  hands,  or  the  amount  of  the  debt  due  from  him  to 
the  defendant.^  The  garnishee  is  a  mere  stakeholder  be- 
tween the  parties,  and  it  would  be  manifestly  unjust,  as 
long  as  he  holds  that  position,  to  subject  him  to  a  judg- 
ment for  a  greater  amount  than  he  has  in  his  hands. 

§  078.  He  will  not,  therefore,  where  he  does  not 
assume  the  attitude  of  a  litigant,  be  chargeable  with 
the  costs  of  the  proceedings  against  him,  or  of  those 
against  the  defendant,  unless  it  appear  that  he  has  suffi- 
cient in  his  hands  for  that  purpose,  after  satisfying  the 
debt.-  But  if  he  denies  indebtedness,  and  an  issue  is 
formed  to  try  the  fact,  the  proceedings  assume  all  the 


»  Tallwtt  r.  Tarlton,  5  J.  J.  Marsliall,  G41  ;  AViloox  v.  Mills,  4  Mass.  218; 
Sanford  r.  Bliss,  12  I'ick.  IIG  ;  Meacham  v.  McCorbItt,  2  Metcalf,  352;  Al- 
len I'.  Hall,  5  Ibid.  2C3. 

■  Gracy  v.  Coates,  2  M-Cord,  224;  Walker  v.  Wallace,  2  Dallas,  113; 
Witherspoon  v.  Barber,  3  Stewart,  335. 

[470] 


§  680  EXTENT    OF    GARNISHEE'S    LIABILITY.     [CH.  XXXIV. 

nature  and  formalities  of  a  suit  between  the  plaintiff 
and  the  garnishee,  and  all  the  consequences  of  a  suit 
attend  these  proceedings.  It  is  no  longer  a  case  in 
"vvhich  the  garnishee  merely  complies  with  the  process 
of  the  court,  occupying  more  the  character  of  a  witness 
than  a  party;  but  he  is,  to  every  intent,  a  party;  and 
may  summon  witnesses,  obtain  continuances,  etc.,  and 
swell  the  costs  as  much  as  the  defendant  could  have 
done.  In  such  a  case  he  is  liable  to  a  judgment  for  the 
costs  which  have  accrued  on  the  garnishment  proceed- 
ings, though  there  be  no  statute  on  the  subject.^ 

§  670.  In  this  connection  may  properly  be  consid- 
ered the  garnishee's  liability  for  interest  on  his  debt  to 
the  defendant,  pcndcnie  lite.  There  is  no  good  reason 
why  a  garnishee  who  has  put  the  defendant's  money  at 
interest,  should  not  be  required  to  account  to  the  de- 
fendant's creditors  for  the  interest ;  and  it  has  been  de- 
cided that  he  is  liable  therefor.^  And  Avliere  the  plain- 
tiff attaches  in  his  own  hands  a  debt  he  owes  to  the 
defendant,  it  has  been  held  that  interest  thereon  con- 
tinues to  run  during  the  pendency  of  the  attachment.'^ 
But  where  a  third  person  is  subjected  to  garnishment, 
"whether  he  shall  be  required  to  pay  interest  on  his 
debt  during  the  time  he  is  restrained  by  the  attachment 
from  paying  it,  is  a  question  about  which  the  adjudica- 
tions are  not  consentaneous. 

§  680.   As  a  general  proposition,  it  may  be  said  that 


^  Thompson  v.  Allen,  4  Stewart  &  Porter,  184. 
-  Brown  v.  Sllsby,  10  New  Hamp.  521. 
^  Willing  V.  Consequa,  Peters,  C.  C.  301. 

[480] 


CH.  XXXIV.]      EXTENT    OF    GARNISHEE'S    LIABILITY.  §  682 

a  garnishee  is  not  chargeable  with  interest  on  his  debt 
to  the  defendant,  while  he  is  restrained  from  makino- 
payment,  by  the  legal  operation  of  an  attachment.^ 
And  it  is  of  no  consequence  whether  the  attachment 
terminates  in  favor  of  the  plaintiff  or  the  defendant ; 
the  rule  is  the  same.^  It  applies,  however,  only  to  cases 
where  the  garnishee  stands  in  all  respects  rectus  in  curia, 
as  a  mere  stakeholder,  and  not  as  a  litigant ;  and  it  has 
received  important  qualifications,  which  have  in  reality 
almost  unsettled  it.  The  courts  have  gone  into  inqui- 
ries as  to  whether  the  garnishee  used  the  money  during 
the  pendency  of -the  attachment ;  and  as  to  the  exist- 
ence of  fraud  or  collusion,  or  unreasonable  delay  occa- 
sioned by  the  conduct  of  the  garnishee  ;  and  various 
decisions  have  been  given,  to  which  we  will  now  direct 
attention. 

§  G81.  In  Pennsylvania,  the  general  rule  was  decided 
to  be  as  above  stated ;  but  it  was  held  that  if  there  is 
any  fraud  or  collusion,  or  unreasonable  delay  occasioned 
by  the  conduct  of  the  garnishee,  he  will  be  charged 
with  interest.^ 

§  G82.  In  a  case  before  "Washington,  J.,  in  the  Third 
Circuit,  the  presumption  was  allowed  in  favor  of  the 
garnishee  that  he  had  not  used  the  money  during  the 
pendency  of  the  attachment ;  but  the  court  considered 


*  Fitzgerald  v.  Caldwell,  2  Dallas,  215  ;  Prcscott  r.  Parker,  4  Mass.  170  ; 
"Willing  V.  Consequa,  Peters,  C.  C.  301  ;  Stevens  r.  Gwathmey,  9  Missouri^ 
6 28  ;  Cohen  i-.  St.  Louis  Perpetual  Ins.  Co.,  11  Ibid.  374. 

*  Matkey  r.  Hodgson,  9  Penn.  State,  468. 

'  Fitzgerald  v.  Caldwell,  2  Dallas,  21-5  ;  UpdegrafT  r.  Spring,  11  Sergeant 
&  Rawle,  188 ;  Mackev  r.  Hodgson,  9  Penn.  State,  468. 

41  [481] 


§  G85  EXTENT    OF    GARNISHEE'S    LIABILITY.      [CH.  XXXIV. 

that  if  he  did  use  it,  it  was  but  just  that  he  should  pay 
interest.^ 

§  683.  In  Maine,  the  garnishee  is  entitled  to  the 
benefit  of  the  presumption  that  he  was  ready  to  pay, 
and  was  holding  the  money  unemployed  to  await  the 
decision  of  the  cause  ;  but  where  the  facts  rebut  such 
presumption,  he  is  chargeable  M'ith  interest.^ 

§  684.  In  Massachusetts,  the  rule  now  is,  in  regard 
to  a  debt  bearing  interest,  that  the  presumption  is  that 
the  garnishee  is  prevented  by  law  from  paying  the 
debt,  or  using  the  money ;  and  if  the  fact  be  that  he 
does  not  use  it,  he  will  not  be  chargeable  with  interest. 
But  if  this  locking  up  of  the  fund  is  merely  a  fiction, 
the  garnishee  in  truth  making  use  of  it  all  the  time  the 
matter  is  in  suspense,  he  will  be  liable  for  interest.  A 
figure  used  by  the  court,  in  a  case  involving  this  ques- 
tion, has  much  illustrative  force.  "  The  service  of  the 
writ  turned  the  key  upon  the  fund,  but  the  trustee 
keeps  the  key,  unlocks  the  chest,  and  takes  the  money 
in  his  own  hands.  In  such  case  he  cannot  be  allowed 
to  say  — '  the  fund  was  locked  up,  and  therefore  I  will 
pay  nothing  for  the  use  of  it.'  This  is  the  reason  of  the 
thing,  and  there  is  no  authority  against  it."^ 

§  685.  In  Maryland,  if  the  garnishee  assumes  the 
position  of  a  litigant,  he  is  chargeable  Avith  interest.'^ 


1  Willing  V.  Consequa,  Teters,  C.  C,  301. 

2  Norris  v.  Hall,  18  Maine,  332. 
^  Adams  v.  Cordis,  8  Pick.  260. 

*  Chase  v.  Manliardt,  1  Bland,  333, 

[482] 


CII.  XXXIV.]      EXTENT    OF    GARNISHEE'S    LIABILITY.  §  689 

§  686.  In  Virginia,  if  the  garnishee  keep  the  defend- 
ant's money  in  his  hands  during  the  pendency  of  the 
attachment,  he  is  presumed  to  use  it,  and  ^vill  be 
charged  with  interest.  To  avoid  this  he  must  pay  the 
money  into  court.^ 

§  687.  In  Georgia,  the  presumption  is  that  the  gar- 
nishment stays  the  property  in  the  hands  of  the  gar- 
nishee, and  the  Law  considers  it  to  remain  in  statu  qiiQ, 
until  ordered  to  be  paid  out  by  the  judgment  of  the 
court.  But  if  the  fact  be  that  the  fund  never  was  set 
apart  or  deposited,  but  continued  mixed  with  the  rest 
of  the  garnishee's  business  capital,  he  will  be  charged 
with  interest.  And  it  is  there  considered  that  a  resist- 
ance of  the  attachment  by  the  garnishee  will  entitle 
the  plaintiff  to  recover  interest  against  him.^ 

§  688.  In  Missouri,  it  has  been  decided  that  the  gar- 
nishee's denial  of  indebtedness  to  the  defendant,  fully 
rebuts  any  presumption  that  he  had  had  the  money 
lying  idle  Ijy  him,  ready  to  pay  the  plaintiff's  demand 
when  judgment  should  be  obtained.^ 

§  689.  The  deductions  from  the  decisions  thus  cited 
may  be  thus  recapitulated  :  1.  The  presumption  is,  gen- 
erally, that  the  garnishee  keeps  the  money  by  him,  set 
apart  for  the  payment  of  the  attachment.  2.  That  pre- 
sumption may  be  rebutted,  either,  by  the  course  of  the 


1  Tazewell's  Ex'r  v.  Barrett,  4  Henning  &  Munford,  259  ;  Templeman  v. 
Fauntlcroy,  3  Randolph,  434. 

«  Georgia  Ins.  &  Trust  Co.  v.  Oliver,  1  Georgia,  38. 
»  Stevens  r.  Gwathmev,  9  Missouri,  628. 

[483] 


§  690  EXTENT    OF    GARNISHEE'S    LIABILITY.     [CH.  XXXIV. 

garnishee  in  assuming  the  position  of  a  litigant,  or  by 
any  competent  evidence  :  —  while  in  Virginia,  the  gar- 
nishee can  avoid  liability  for  interest  only  by  paying 
the  money  into  court ;  and  in  Massachusetts,  must 
make  it  appear  that  he  has  not  used  the  money.  The 
course  of  decision,  therefore,  is  clearly  adverse  to  ex- 
empting a  garnishee  from  this  liability ;  and  the  proba- 
bility is  that  eventually  the  rule  will  be  generally 
acquiesced  in,  as  stated  in  Massachusetts. 

§  690.  The  foregoing  considerations  apply  only  to 
the  case  of  the  garnishee's  liability  to  a  judgment  in 
favor  of  the  plaintiff  in  attachment,  for  interest  accrued 
pendente  lite.  There  is,  however,  another  question  which 
may  be  considered  as  growing  out  of  this,  and  properly 
noticeable  here.  AVhere  the  debt  due  from  the  gar- 
nishee to  the  defendant  is  not  wholly  consumed  in 
meeting  the  attachment,  and  the  garnishee  is  accounta- 
ble to  the  defendant  for  a  balance,  after  satisfying  the 
attachment,  what  rule  shall  govern  the  recovery  of  in- 
terest by  the  defendant  in  a  suit  against  him  who  was 
garnishee  ?  Shall  the  latter  be  exempted  from  paying 
any  interest  on  any  part  of  his  debt,  during  the  pen- 
dency of  the  attachment ;  or  shall  the  exemption  extend 
only  to  such  part  of  the  debt  as  it  was  necessary  for 
him  to  retain  to  satisfy  the  attachment  ?  The  latter 
rule  has  been  declared  in  Pennsylvania,  where  the 
court  said,  "  it  would  be  most  unreasonable,  when  the 
debt  claimed  is  a  large  one,  and  the  debt  for  which  the 
attachment  issued  is  a  small  one,  that  interest  should 
be  suspended,  during  the  pendency  of  the  action,  on 
the  whole  sum.  If  the  debt  was  ten  thousand  dollars, 
and  one  hundred  only  were  attached  in  the  hands  of 
[484] 


CH.  XXXIV.]     EXTENT    OF   GARNISHEE'S    LIABILITY.  §  692 

the  debtor,  it  would  shock  our  understanding  —  all  man- 
kind would  cry  out  against  the  law  —  if  it  pronounced 
that  the  creditor  should  lose  the  interest  on  his  ten 
thousand  doUars,  to  meet  the  debt  of  one  hundred  dol- 
lars." ^ 

§  691.  The  garnishee's  liabilit}',  considered  with  ref- 
erence to  the  time  of  the  garnishment,  cannot,  without 
the  aid  of  special  statutory  provision,  be  extended  be- 
yond the  effects  or  credits  of  the  defendant  in  his  hands 
at  the  date  of  the  garnishment.  The  attachment  is  the 
creature  of  the  law,  and  can  produce  no  effect  which 
the  law  does  not  authorize.  Its  operation,  when  served, 
is  upon  the  attachable  interests  then  in  the  garnishee's 
possession ;  and  it  cannot  be  brought  to  bear  upon  any 
liability  of  the  garnishee  to  the  defendant  accruing  after 
its  service,  unless  the  law  so  decLare. 

§  692.  In  Massachusetts,  it  has  been  uniformly  held 
that  the  garnishee  cannot  be  charged  beyond  the  value 
of  the  effects  in  his  hands,  or  the  amount  of  debt  due 
from  him  to  the  defendant,  when  he  was  summoned.^ 
Therefore,  where  a  lessee  who  was  bound  by  the  terms 
of  his  lease  to  pay  his  rent  quarterly,  was  summoned  as 
frarnishee  of  his  lessor,  it  was  decided  that  he  could  be 
charged  only  for  so  many  quarters'  rent  as  were  due  at 
the  time  of  the  garnishment,  and  not  for  any  thing 
faUing  due  thereafter.^    So  in  Virginia,  where  an  agent 


1  Sickman  v.  Lapsley,  13  Sergeant  &  Rawlc,  224. 

2  Wilcox  V.  Mills,  4  Mass.  218;  Sanford  r.  Bliss,  12  Pick.  116  ;  Meacham 
V.  McCorbitt,  2  Metealf,  352 ;  Allen  v.  Hall,  5  Ibid.  263. 

»  Wood  r.  Partridge,  11  ISLi^s.  488. 

41*  [485] 


§  G94  EXTENT    OF    GARNISHEE'S    LIABILITY.      [CH.  XXXIV. 

of  the  defendant,  employed  to  collect  rents,  was  .gar- 
nished, it  was  held  that  he  was  not  chargeable  on  ac- 
count of  any  rents  collected  by  him  after  the  garnish- 
ment.^ The  same  doctrine  obtains  in  Maine.  There, 
where  a  son  gave  a  bond  to  his  father,  for  the  payment 
of  certain  sums  of  money,  and  the  delivery  of  certain 
quantities  of  provisions,  at  stated  times  in  each  year 
of  his  father's  life,  it  was  held  that  he  could  not  be 
charged  as  garnishee  of  his  father  for  any  thing  not  ac- 
tually payable  when  he  was  garnished.^  In  Alabama 
and  Louisiana,  the  same  rule  prevails.^ 

§  693.  This  position  must  be  distinguished  from  the 
case  of  the  garnishee's  liability  in  respect  of  dehihim  in 
jjrcesenti,  solvendum  infiituro.^  We  have  previously  seen 
that  such  a  debt  may  be  reached  by  garnishment. 
There  the  debt  exists  at  the  time  of  the  garnishment, 
but  is  payable  afterward ;  in  the  cases  now  under  con- 
sideration the  debt  has  no  existence  until  after  the  gar- 
nishment. 

§  694.  It  should  also  be  distinguished  from  the  case 
of  a  liability  existing,  but  uncertain  as  to  amount,  at 
the  time  of  the  garnishment,  but  which  afterward  be- 
comes, as  to  the  amount,  certain.  There  the  garnish- 
ment will  attach,  and  the  extent  of  the  garnishee's  lia- 
bility will  be  determined  by  the  subsequent  ascertain- 


^  IlafTey  v.  ]\Iiller,  C  Grattan,  454.  . 

*  Sayward  v.  Drew,  6  Maine,  263. 

*  Branch  Bank  v.  Poe,  1  Alabama,  396  ;  Hazard  v.  Franklin,  2  Ibid.  349; 
Payne  v.  Mayor,  &c.  of  Mobile,  4  Ibid.  333  ;  Roby  v.  Labuzan,  21  Ibid.  60  ; 
Bean  v.  IVIiss.  Union  Bank,  5  llobinson  (La.)  333. 

*  Branch  Bank  v.  Poe,  1  Alabama,  396. 

[486] 


CH.  XXXIV.]      EXTENT   OF   GARNISHEE'S    LIABILITY.  §  695 

ment  of  the  amount  due.  Such  was  a  case  where  an 
insurance  company  was  summoned  as  garnishee  in  re- 
spect of  an  amount  due  the  defendant  for  a  loss  of 
property  insured  by  the  company.  The  loss  happened 
before,  but  was  not  adjusted  imtil  after  the  garnish- 
ment, and  the  company  was  held  liable.^ 

§  695.  In  New  Hampshire,^  and  in  Pennsylvania/ 
since  1836,  the  garnishee  is  chargeable  not  only  for  the 
effects  in  his  hands  when  he  was  summoned,  but  also 
for  whatever  may  come  into  his  hands,  or  become  due 
from  him  to  tl\e  defendant,  between  the  time  of  the 
garnishment  and  that  of  the  answer.  In  each  case, 
however,  this  results  from  peculiar  statutory  provisions. 

^  Frankliij  Fire  Ins.  Co.  v.  West,  8  Watts  &  Sergeant,  350. 
*  Edgerly  v.  Sanborn,  6  New  Ilamp.  397. 

'  Franklin  Fire  Ins.  Co.  v.  West,  8  Watts  &  Sergeant,  350  ;  Silverwood  v. 
Bellar,  8  Wharton,  420. 

[487] 


CHAPTER   XXXV. 

OF   THE     garnishee's    RIGHT    OF    DEFENCE    AGAINST    HIS    LIABIL- 
ITY  TO   THE   DEFENDANT. 

§  696.  As  the  attaching  creditor  seeks  to  avail  him- 
self of  the  claim  of  the  defendant  against  the  garnishee, 
and  his  recourse  against  the  latter  extends  no  further 
than  that  claim,  and  in  enforcing  the  remedy  he  is  not 
permitted  to  place  the  garnishee  in  any  worse  condition 
than  he  would  occupy  if  sued  by  the  defendant ;  it  fol- 
lows necessarily,  that  whatever  defence  the  garnishee 
could  urge  against  an  action  by  the  defendant  for  the 
debt  in  respect  of  which  he  is  garnished,  he  may  set  up 
in  bar  of  a  judgment  against  him  as  garnishee.  Were 
it  otherwise,  an  attaching  creditor,  operating  through 
the  defendant,  might  obtain  a  recourse  against  the  gar- 
nishee which  the  defendant  could  not :  a  proposition, 
the  statement  of  which  (except  as  to  cases  of  fraud,)  is 
its  own  refutation. 

§  697.  If,  therefore,  the  debt  of  the  garnishee  to  the 
defendant  is  barred  by  the  statute  of  limitations,  he  may 
take  advantage  of  the  statute,  just  as  he  could  if  sued 
by  the  defendant.^ 

^  Hlnkle  v.  Currin,  2  Humphreys,  137;  Benton  v.  Lindell,  10  Missouri, 
557  ;  Gee  v.  Gumming,  2  Haywood,  N.  C,  398  ;  Gee  v.  Warwick,  Ibid.  358 ; 
Hazen  v.  Emerson,  9  Pick.  144. 

[488] 


CH.  XXXV.]       gaexishee's  TvIGiit  of  defexce.  §  700 

§  698.  So  where  the  consideration  of  the  garnishee's 
debt  to  the  defendant  has  failed,  the  garnishee  may  take 
advantage  of  it.  Thus,  where  the  garnishee  had  pur- 
chased a  tract  of  land  from  the  defendant,  the  last  pay- 
ment for  which  was  due,  but  after  the  note  therefor 
was  given,  the  garnishee  discovered  that  there  was  a 
judgment  against  the  defendant  which  bound  the  land, 
and  which  he  w^as  compelled  to  satisfy,  and  the  amount 
was  greater  than  that  of  the  note ;  it  was  held  that  he 
could  not  be  charged.^ 

§  699.  So  if  a  debtor,  by  the  defoult  of  his  creditor, 
be  discharged  from  his  contract,  he  cannot,  in  respect 
of  that  contract,  be  charged  as  garnishee  of  his  creditor. 
Thus,  where  A.  gave  his  note  to  B.  for  five  tons  of  hay, 
deliverable  in  July,  1808,  on  A.'s  fiirm,  and  B.  was  not 
then  and  there  to  receive  it,  it  was  held  that  B.  had  no 
cause  of  action  against  A.,  and  that  A.,  therefore,  could 
not  be  held  as  his  garnishee.^ 

§  TOO.  So,  though  there  is  no  doubt  that  a  payment 
by  the  garnishee  to  the  defendant,  after  the  garnish- 
ment, will  not  prevent  the  liability  of  the  garnishee,^ 
yet  if  there  are  other  parties,  not  garnished,  who  are 
jointly  liable  with  him  for  the  debt,  and  they,  pending 
the  attachment  proceeding,  pay  the  debt,  the  garnishee, 
by  showing  such  payment,  will  be  entitled  to  be  dis- 
char";ed.* 


1  Sheldon  V.  Simonds,  Weight,  724.     See  :Maliris  v.  Clark,  2  [Mills,  Const. 
Ct.  456  ;  Russell  v.  Hinton,  1  Murphey,  468  ;  Moser  v.  Maberry,  7  Watts,  12. 

2  Jewett  V.  Bacon,  6  [Mass.  60. 

»  Locke  V.  Tippetts,  7  Mass.  149. 
*  Jewett  V.  Bacon,  6  Mass.  60. 

[489] 


§  703  garnishee's  right  of  defence.       [cu.  xxxv. 

§  701.  But  if  one  indebted,  pay  the  amount  of  his 
indebtedness  to  a  creditor  of  his  creditor,  without  any 
authority  from  his  creditor,  and  be  afterwards  garnished 
in  a  suit  against  the  latter,  this  unauthorized  payment 
will  not  avail  him  as  a  defence,  and  a  ratification  of  it 
by  the  defendant  after  the  garnishment  "will  be  inef- 
fectual, because  the  jus  dispoucndi  in  the  defendant  is 
taken  away  by  the  attachment.^ 

§  702.  And  where,  as  in  Virginia,  the  proceeding  by 
foreign  attachment  is  in  Chancery,  the  garnishee  may 
set  up  any  equitable  defence,  which  shows  that  in 
equity  he  owes  no  debt  to  the  defendant.^ 

§  703.  The  particular  defence  which  has  given  rise 
to  the  greatest  amount  of  adjudication  is  set-off ;  con- 
cerning which  the  rule  is  equally  well  established 
that  the  rights  of  the  garnishee  shall  not  be  disturbed 
by  the  garnishment.  Whatever  claim,  therefore,  he 
has  against  the  defendant,  and  of  which  he  could  avail 
himself  by  set-off  in  an  action  between  them,  will  be 
equally  available  to  him  in  the  same  way,  in  the  gar- 
nishment proceeding.^  And  though  the  set-off  consist 
of  moneys  paid  by  the  garnishee,  on  his  verbal  assumpsit 
of  debts  of  the  defendant,  which  he  might  have  avoided 
by  pleading  the  Statute  of  Frauds,  the  plaintiff  cannot 
object  to  it ;  for  that  plea  is  a  personal  privilege  which 
may  be  waived,  and  having  been  waived  by  the  gar- 
nishee, his  payment  cannot  be  assailed  on  that  ground.* 

^  Sturtevant  v.  Robinson,  18  Pick.  175. 
"  Glassell  v.  Thomas,  3  Leigh,  113. 
'  '  Picquet  v.  Swan,  4  Mason,  443. 

*  McCoy  V.  Williams,  6  Illinois  (1  Gilman)  584. 

[490] 


cii.  XXXV.]       garnishee's  right  of  defence.  §  705 

§  704.  The  claim  wliicli  the  garnishee  seeks  to  set 
off  against  his  indebtedness  to  the  defendant,  must, 
however,  be  due  in  the  same  right  as  his  indebtedness. 
Therefore,  a  garnishee  answering  that  he  is  indebted  to 
the  defendant,  cannot  set  off  a  claim  he.  has,  as  adminis- 
trator of  another  person,  against  the  defendant.^  So,  if 
he  be  indebted  individually  to  the  defendant,  he  cannot 
set  off  a  debt  due  from  the  defendant  to  him  and 
another  jointly.^  So,  where  several  garnishees  were  in- 
debted, as  copartners,  to  the  defendant,  who  was 
indebted  to  them  individually  as  legatees,  it  was  held 
that  the  two  debts  could  not  be  set  off  against  each 
other.^  But  where  a  copartnership  was  indebted  to  the 
defendant,  and  a  part  only  of  the  members  of  the  firm 
were  garnished,  it  was  held  in  Massachusetts,  that  those 
who  were  summoned  should  be  allowed  the  benefit  of 
such  set-offs  as  they,  and  their  copartners,  not  sum- 
moned, were  entitled  to  against  the  defendant."* 

§  705.  Whether  the  garnishee's  right  to  set-off  will 
be  restricted  to  debts  actually  due  from  the  defendant 
to  him  at  the  date  of  the  garnishment,  has  been  differ- 
ently decided.  In  Massachusetts  the  rule  is,  that  if  the 
defendant  before  final  aiistver  becomes  indebted  to  the 
garnishee,  on  any  contract  entered  into  before  the  gar- 
nishment, the  garnishee's  right  of  set-off  exists.^  Thus, 
where  the  garnij^hee,  when  summoned,  was  indebted  to 


*  Thomas  r.  Hopper,  5  Alabama,  442. 
^  Gray  r.  Badgett,  5  Arkansas,  16. 

*  Blanchard  v.  Cole,  8  Louisiana,  1 60. 

*  Hathaway  v.  Russell,  16  Mass.  473. 

*  Boston  Type,  etc.  Co.  v.  Mortimer,  7  Pick.  166 ;  Allen  v.  Hall,  5  Met- 
calf,  263. 

[491] 


§  700  garnishee's  eight  of  defence.       [ch.  xxxv. 

the  defendant,  but  was,  at  the  same  time,  liable  as  ac- 
commodation indorser  of  a  note  of  the  defendant  for  a 
larger  amount,  which  became  due  after  the  garnish- 
ment, and  was  protested  for  non-payment,  and  the  gar- 
nishee paid  it  before  he  made  his  answer,  the  court  held 
that  he  could  set  off  the  amount  of  the  note  against  his 
debt  to  the  defendant ;  and  in  giving  their  decision  ob- 
served :  "  Under  these  circumstances  we  think  he 
cannot  be  held  as  trustee ;  for  it  would  be  against  jus- 
tice that  he  should  be  held  to  pay  a  creditor  of  his 
debtor  the  only  money  by  which  he  can  partially  in- 
demnify himself.  This  question  has  not  before  arisen, 
but  we  think  it  quite  consistent  with  the  object  and 
views  of  the  legislature,  and  with  the  general  tenor  of 
the  statute,  that  if  before  final  answer  the  debtor  be- 
comes indebted  to  the  respondent  on  any  contract  en- 
tered into  before  the  service  of  the  writ,  the  latter  shall 
have  a  right  of  set-off  and  be  chargeable  only  with  the 
final  balance,  if  one  should  be  due.  This  decision  will 
not  reach  the  case  of  a  liability  incurred  after  the  ser- 
vice of  a  writ,  or  where  the  effect  of  such  liability  may 
be  avoided  by  reasonable  diligence  on  the  part  of  the 
person  liable,  to  procure  the  payment  of  the  debt  by 
the  principal ;  nor  where  it  is  contingent  whether  the 
liability  will  ever  be  enforced  or  not ;  but  we  confine  it 
to  such  a  case  as  we  have  before  us,  in  which  there  was 
an  actual  liability  before  the  service  of  the  writ,  and  an 
actual  payment,  by  necessity,  before  the  answer."  ^ 

§  706.    On  the  other  hand,  it  has  been  decided  in 
Delaware,  that  the  garnishee  cannot  set  off  a  note  of 


^  Boston  Type,  etc.  Co.  v.  Mortimer,  7  Pick,  1G6. 

[492] 


CH.  XXXV.]       garnishee's  right  of  defence.  §  706 

the  defendant  ^liich  was  not  due  at  the  time  of  the 
garnishment.^  And  where,  before  the  garnishment,  a 
judgment  had  been  obtained  against  the  garnishee,  as 
security  of  the  defendant,  which  he  satisfied  after  he 
was  garnished,  it  was  held,  in  Arkansas,  that  he  could 
not  set  off  the  amount  so  paid,  against  his  debt  to  the 
defendant.^  In  the  Circuit  Court  of  the  United  States 
for  the  Third  Circuit,  the  following  case  occurred.  A. 
was  summoned  on  the  14th  of  September,  as  garnishee 
of  B.,  and  in  his  answer  admitted  having  received  on 
the  lOth  of  September,  50  crates  of  earthen-ware  be- 
longing to  the  defendant,  which  on  being  sold  netted 
§900  ;  but  stated  that  he  was  indorser  on  bills  accepted 
by  B.,  which  had  been  protested  before  the  garnish- 
ment, and  after  the  garnishment  were  paid  by  him. 
This  case  it  will  be  perceived  differs  from  that  in  Mas- 
sachusetts, just  cited,  in  the  important  point  of  the  gar- 
nishee's liability  as  indorser  having  been  fixed  before 
the  garnishment,  though,  as  in  that  case,  the  payment 
was  made  afterward. 

Washington,  J.,  charged  the  jury.  "  This  is  a  hard  case 
upon  the  garnishee,  who,  at  the  time  this  attachment 
was  levied,  Avas  liable  to  pay  these  bills,  as  indorser,  to 
a  much  greater  amount  than  the  value  of  the  funds  of 
the  defendant  in  his  hands,  and  if  he  had  then  paid 
them  he  most  undoubtedly  would  not  have  had  in  his 
hands  any  effects  of  the  defendant,  as  he  could  not  have 
been  liable  for  more  than  the  balance  of  account  be- 
tween him  and  the  defendant.  But  until  he  paid  them, 
he  was  not  a  creditor  of  the  defendant,  and  of  course- 


1  E'hvards  r.  Dclaplaine,  2  Harrington,  322. 
«  Watkins  v.  Field,  1  English,  391. 

42  [493] 


§  707  GARXISIIEE's    Ririlll    of   defence.  [cII.  XXXV. 

the  attachment  bound  the  eflects  of  the  defendant  in 
his  hands,  at  the  time  it  was  laid,  which  coidd  not  be 
affected  by  subsc({iient  credits  to  wliich  he  mi<;ht  be 
entitled.  The  law  of  this  State  is  too  strong  to  be  re- 
sisted. It  not  only  declares,  that  the  goods  and  effects 
of  the  absent  debtor  in  the  hands  of  the  garnishee  shall 
be  bound  by  the  attachment,  but  that  the  garnishee 
shall  plead  that  he  had  no  goods  and  effects  of  the 
debtor  in  his  hands  when  the  attachment  was  levied, 
nor  at  awj  time  since ;  on  which  the  plaintiff  is  to  take 
issue,  and  the  jury  are  to  fmd  the  fact  put  in  issue,  one 
way  or  the  other.  Now,  until  these  bills  were  paid  by 
the  garnishee  he  had  no  claim  against  the  defendant ; 
and  on  the  19th  of  September,  he  had  goods  of  the  de- 
fendant in  his  hands,  which  must  decide  the  issue  in 
flivor  of  the  plaintiff.  The  case  must  be  decided  pre- 
cisely in  the  same  manner  as  if  this  cause  had  come  on 
before  those  bills  were  paid  by  the  garnishee.  Your 
verdict,  therefore,  must  be  for  the  plain tift^  to  the 
amount  of  the  effects  acknowledged  Ijy  the  garnishee 
to  have  been  in  his  hands,  independent  of  those  bills."  ^ 

§  707.  The  Suj^reme  Court  of  Pennsylvania  hold  the 
same  general  doctrine.  The  late  distinguished  Chief 
Justice  Gibson  thus  expressed  his  views :  "  A  cross  de- 
mand against  the  defendant  in  an  attachment  may  be 
set  off  by  the  garnishee,  as  it  may  by  a  defendant  in 
any  other  suit,  but  subject  to  the  same  rules  and  re- 
strictions ;  and  a  defendant  may  not  set  off  a  demand 
acquired  after  the  action  was  instituted.  Nor  may  a 
plaintiff  give  evidence  of  a  cause  of  action  incomplete 

^  Taylor  r.  Gardner,  2  "Washington  C.  C.  488. 

[494] 


en.  XXXV.]       garnishee's  right  of  defence.  §  709 

at  the  impetration  of  the  writ.  But  set-off  is  in  sub- 
stance a  cross  action ;  and  a  cross  demand  also  must 
have  been  complete  when  the  action  was  instituted. 
In  this  respect  the  parties  stand  on  equal  ground. 
Neither  is  alloiued  to  get  the  tvhip  hand  and  souse  the  other  in 
costs,  hy  starting  Jjcfore  he  was  readg."  ^ 

§  708.  It  may  not  unfrequently  become  a  question 
"whether  the  set-off  claimed  by  the  garnishee  was  ac- 
quired before  or  after  the  garnishment.  In  such  case, 
there  is  no  presumption ;  but  the  garni.shee,  alleging 
the  existence  of  the  set-off  before  the  garnishment, 
must  support  his  allegation  with  proof- 

§  709.  In  regard  to  set-offs  the  Supreme  Court  of 
Ma.ssachusetts  seem  always  to  have  entertained  an  ex- 
pansive and  equitable  view  of  the  rights  of  garnishees. 
In  1820,  an  intricate  and  interesting  case  came  before 
them,  which  deserves  an  extended  statement  here. 

A.,  B.,  C,  D.,  E.,  and  F.,  owners  of  the  ship  Bristol, 
were  summoned  as  garnishees  of  W.  &  W.,  to  whom 
they  were  indebted  in  the  sum  of  $8,403.02.  But  it 
appeared  that  W.  k  W.  were  indebted  to  D.,  E.,  and  F., 
and  the  question  arose  whether  the  latter  could  set  off 
the  indebtedness  of  W.  &  W.  against  their  respective 
proportion  of  liability  as  owners  of  the  Bristol,  to  W.  k 
"VV.  The  court,  on  this  subject,  take  the  following 
ground.  "  This  right  of  set-off,  when  a  part  only  of  the 
debtors  on  the  one  side  are  creditors  on  the  other,  was 
formerly  doubted  ;  but  is  now  well  established  in  courts 


'  Pcnncll  V.  Grubb,  1.3  Tenn.  State,  552. 
=  Ibid. 


[495] 


§  700  qarnisiiee's  right  of  defence.       [rii.  xxxv. 

both  of  law  and  equity.     The  right  in  the  case  at  bar 
does  not  depend  on  any  statute   jirovisions,  l)ut  arises 
from  the  nature  of  the  suit  into  which  the  trustee  is 
thus  incidentally  introduced  as  a  party.    In  this  suit  he 
is  called  upon  to  answer  for  all  the  goods,  effects,  and 
credits  of  the  defendants  in  his  hands;  without  regard 
to  the  nature  of  the  demands,  or  to  the  form  of  action 
in  which  they  would   be  recovered  by  the  defendant, 
and  even  if  they  should  be  of  several  diilerent  kinds, 
requiring  different  forms  of  action.    On  the  other  hand, 
he  is  to  be  allowed  all  his  demands  against  the  defend- 
ant, of  wliich  he  could  avail  himself  in  any  form  of  ac- 
tion, or  any  mode  of  proceeding  between  himself  and 
the  defendant ;  whether  by  way  of  set-off  on  the  trial, 
as  provided  by  our  statutes  ;  or  by  setting  off  the  judg- 
ments under  an  order  of  court ;  or  by  setting  ofl'  the 
executions  in  the  hands  of  the  sheriff,  as  is  also  provided 
by  statute.     If  this  were  not  so,  the  trustee  would  be 
injured  by  having  his  claims  thus  drawn  in,  to  be  set- 
tled incidentally  in  a  suit  between  strangers.     In  this 
adjustment  of  their  mutual  claims,  we  of  course  except, 
on  both  sides,  all  claims  for  unliquidated  damages  for 
mere  torts."     The  court  then  take  as  the  basis  of  its 
judgment  the  entire  indebtedness  of  the  owners  of  the 
Bristol  to  W.  &  W.,  and,  as  the  result  of  the  position 
just  quoted,  direct  to  be  deducted  from  that  indebted- 
ness all  that  was  due  from  W.  k  W.  to  either  of  the  six 
owners.     But  here  another  question  arose.     It  will  be 
remembered  that  W.  &  W.  were   indebted  to  D.,  E., 
and  F.,  and  it  so  happened  that  this  indebtedness  was 
not  to  either  D.,  R,  or  F.,  alone,  but  to  each  of  them 
jointly  with   other  parties  not  concerned  in  the  pro- 
ceedings.    Thus  D.  was  owner  of  one  sixteenth  part  of 
[406] 


cn.  XXXV.]       garnishee's  right  of  defence.  §  709 

the  ship  India,  to  the  owners  of  which  ship  W.  &  "\Y. 
were  indebted  in  the  sum  of  $5,332.76.  So,  also,  was 
E.  owner  of  the  same  part  of  the  same  ship.  F.  was 
owner  of  one  eighth  part  of  the  ship  Lydia,  to  the  own- 
ers of  which  ship  W.  &  AV.  were  indebted  in  the  sum  of 
§7;5G0.  Now,  the  proportion  of  D.,  E.,  and  F.,  in  the 
debt  of  the  Bristol  to  W.  c^'  W.,  was  $1,410.50.  The 
proportion  of  D.  and  E.,  each,  in  the  debt  of  W.  &  W. 
to  the  owners  of  the  India  was  $333.29 ;  and  the  pro- 
portion of  F.  in  the  debt  of  W.  k  W.  to  the  owners  of 
the  Lydia  was  $945.  D.,  E.,  and  F.,  each,  claimed  to 
deduct  from  the  $1,410.50  their  respective  proportion- 
ate shares  of  the  debts  due  from  W.  k  W.  to  the  owners 
of  the  India  and  the  owners  of  the  Lydia,  as  aforesaid. 
On  this  point  the  court  say  :  "  Now,  as  neither  D.,  E., 
nor  F.,  could  have  brought  an  action  against  W.  &  W. 
for  the  proportion  due  to  each  of  them,  as  part  owners 
of  the  ships  India  and  Lydia,  respectively,  it  seems  diffi- 
cult to  set  oft'  that  proportion  against  the  claims  of  W. 
&  W.  On  the  otlier  hand,  it  is  an  invariable  principle, 
in  every  suit  of  this  kind,  that  the  trustee  shall  not  be 
prejudiced  by  being  made  a  party  in  a  suit  between 
strangers;  and  it  would  be  highly  prejudicial  and  inju- 
rious to  him,  if  he  were  compelled  to  pay  money,  as 
due  to  one  of  the  parties  in  the  suit,  when  that  same 
party  was  indebted  to  him  in  another  sum  which  he 
might  be  unable  to  pay."  The  court  proceed  with  the 
argument  of  the  case,  and  finally  arrive  at  the  conclu- 
sion expressed  in  the  following  language :  "  In  this  suit 
a  demand  is  made  on  the  trustee,  without  any  regard 
to  technical  forms,  to  pay  whatever  eftects  of  the  de- 
fendant he  may  have  in  his  hands;  and  those  effects 
42=:-=  [497] 


§  710  garnishee's   right    of   defence.  [cu.  XXXV. 

are  only  what  remains,  after  deducting  all  that  he  could 
retain  or  set  off,  in  any  lawful  mode  of  adjustment  be- 
tween himself  and  the  defendant,  without  regard  on  his 
part  to  mere  technical  forms.  The  legislature  certainly 
intended  that  all  just  and  reasonable  allowances  should 
be  made  to  the  trustee,  to  protect  him  from  injury;  and 
it  is  our  business  to  make  the  forms  of  proceeding  yield, 
in  every  case,  to  the  principles  of  law  and  justice;  and 
not  to  leave  the  will  of  the  legislature  unaccomplished, 
from  a  scrupulous  adherence  to  technical  rules.  The 
parties  will  compute  the  amount  due  from  each  of  the 
trustees,  after  allowing,  according  to  these  principles, 
the  set-offs  claimed  by  each;  and  the  judgments  will  be 
entered  accordingly."^ 

§  710.  A  later  case  was  decided  on  principles  of  as 
free  equity  as  that  just  considered.  A  testator  devised 
and  bequeathed  all  his  property  to  W.,  on  condition 
that  he  should  pay  all  the  testator's  debts,  and  the  lega- 
cies given  by  his  will ;  and  he  also  appointed  W.  execu- 
tor of  his  will.  Among  the  legacies  was  one  of  $200  to 
R,  which  was  to  be  paid  in  two  years  after  the  testa- 
tor's decease.  When  the  will  was  made,  the  testator 
held  several  promissory  notes  against  11.,  amounting  to 
$322,  which  were  over  due.  W.  accepted  the  devise 
and  bequest  made  to  him,  but  declined  the  trust  of  ex- 
ecutor; and  administration  on  the  testator's  estate,  with 
the  will  annexed,  was  granted  to  a  third  person.  G. 
brought  an  action  against  E.,  and  summoned  W.  as  R's 
trustee ;  and  it  was  held,  that  R's  notes,  though  paya- 


^  Hathaway  v.  Russell,  16  Mass.  473. 

[498] 


cii.  XXXV.]       garnishee's  right  of  defence.  §  711 

ble  to  the  testator,  aud  in  IbrDi  to  be  collected  in  the 
name  of  his  legal  representative,  -were  really  the  prop- 
erty of  the  defendant,  and  -were  a  valid  set-off,  in  the 
hands  of  ^y.,  against  the  amount  which  he  was  bound 
as  legatee  to  pay  to  R.,  and  being  greater  in  amount 
than  the  legacy  due  Pi.  from  W.,  the  latter  was  not  lia- 
ble as  trustee.^ 

§  711.  In  Alabama,  it  has  been  held  that  a  garnishee 
cannot  avail  himself  of  an  equitable  claim  against  the 
defendant  by  way  of  set-oiT.  Therefore,  where  the  gar- 
nishee had  in  his  hands  a  sum  of  money  belonging  to 
the  defendant,  being  a  balance  of  the  proceeds  of  prop- 
erty conveyed  to  him  in  trust  to  secure  a  debt  due  to 
him,  but  insisted  upon  his  right  to  appropriate  that  bal- 
ance to  the  payment  of  a  note  made  by  the  defendant 
to  S.  &  Co.,  and  by  S.  &  Co.  transferred  to  the  garnishee, 
but  without  indorsement,  whereby  only  the  equitable 
title  to  the  note  was  vested  in  the  garnishee,  while  the 
legal  title  still  remained  in  S.  Sc  Co. ;  it  was  held  that 
the  garnishee  having  only  an  equity,  could  not  avail 
himself  of  it  as  a  set-off  The  court  in  giving  their 
opinion  use  the  following  language:  "It  is  certainly 
true  tliat  the  plaintift'in  the  garnishment,  being  substi- 
tuted to  the  legal  rights  of  his  debtor,  to  be  enforced 
in  this  summary  way,  cannot  maintain  this  proceeding 
to  recover  an  equitable  demand  —  one  upon  which  the 
debtor  could  not  have  maintained  his  action  at  law. 
The  same  principle  which  would  limit  the  plaintifi'  to  a 
legal  ground  of  action  would  ecjually  apply  to  the  de- 
fendant —  he  must  be  confined  to  such  defences  as  he 

^  Green  v.  Nelson,  12  Metcalf,  507. 

[400] 


§  711  GArxNISIIEE's    RIGHT    OF   DEFEN'CE.  [ciI.  XXXV. 

could  have  made,  had  his  debtor,  instead  of  the  creditor 
of  his  debtor,  instituted  legal  proceedings  against  him. 
This  would  seem  to  result  from  the  want  of  adaptation 
in  the  forms  of  the  court  of  law  to  do  complete  equity 
between  the  parties.  If  the  defendant  could  be  allowed 
to  set  up  an  equitable  defence,  while  the  plaintiff  was 
confined  down  to  his  legal  right  of  action,  there  would 
seem  to  be  a  want  of  mutuality  in  the  proceeding,  and 
the  greatest  injustice  might  sometimes  be  done.  The 
plaintiff  might  have  an  equitable  demand  which  would 
countervail  that  set  up  by  the  defendant,  yet  he  would 
be  unable  to  subject  the  legal  demand,  inasmuch  as  the 
defendant  could,  and  he  could  not,  set  up  his  equitable 
one.  Besides,  in  many  cases  it  would  bo.  impossible  for 
the  court  of  law  to  adjust  properly  the  equities  between 
the  parties,  even  if  it  possessed  the  jurisdiction.  Such 
a  practice  of  blending  the  legal  and  equitable  jurisdic- 
tion of  the  courts,  would  under  their  present  organiza- 
tion introduce  the  greatest  confusion,  uncertainty,  and 
difficulty.  The  view  we  take  is,  we  think,  clearly  indi- 
cated by  the  whole  tenor  of  our  decisions,  and  must  be 
sustained  so  long  as  the  jurisdiction  of  courts  of  equity 
is  kept  distinct  from  that  of  the  law  courts.  If  S.  &  Co., 
the  payees  of  the  note,  retained  the  legal  title,  it  is  well 
settled,  that,  had  the  defendant  instituted  his  action  of 
assumpsit,  to  recover  from  the  garnishee  the  balance 
due  after  satisfying  the  mortgage  deed,  the  latter  could 
not  have  set  off  the  amount  of  the  note  to  S.  &  Co.  in 
such  suit,  however  strong  may  have  been  his  equity. 
We  think  he  stands  in  the  same  condition  with  respect 
to  the  plaintiff  in  the  garnishment.  If  he  has  a  set-off 
which  is  equitable,  he  must  assert  it  in  a  court  of  equity, 
[500] 


CH.  XXXV.]       garnishee's  right  of  defence.  §  712 

where  for  aught  we  can  know,  it  may  be  rebutted  or 
repelled,  and  countervailed  by  superior  equities." ^ 

&  712    We  have  considered  only  those  cases  in  which 
the  garnishee  is  indchtcd  to  the  defendant.     His  position 
is  different  where  it  is  sought  to  charge  him  ni  respect 
of  property  of  the  defendant  in  his  hands.     There  the 
question  of  his  right  to  set-off  will  depend  on  the  fact 
whether  he  has  any  lien,  legal  or  equitable,  upon  the 
property,  or  any  right,  as  against  the   defendant,  by 
contract,  by  custom,  or  otherwise,  to  hold  the  property, 
or  to  retain  possession  of  it  in  security  of  some  debt  or 
claim  of  his  own.    If  he  has  a  mere  naked  possession  of 
the  property,  without  any  special  property  or  lien  ;  if 
the  defendant  is  the  owner,  and  has  the  present  right 
of  possession,  so  that  he  might  lawfully  take  it  out  of 
the  custody,  or  authorize  another  to  take  it  out  of  the 
custody   of  the   garnishee,  then    the    property  stands 
charo-ed  in  the  hands  of  the  garnishee,  and  he  has  no 
greater  right  to  charge  it  with  a  debt  of  his  own  by 
way  of  set-off,  than  he  would  have  hud  if  the  goods  had 
been  taken  into  custody  by  the  officer,  at  the  time  of 
the  attachment.^ 


1  Loftin  V.  Sliackk'fon],  17  Alabauia,  455. 
3  Allen  V.  lliill,  o  Mctcalf,  203. 

[  501  ] 


CHAPTER    XXXVI. 

OF  THE  GARNISUEE'S  RIGHT  TO  TAKE  ADVANTAGE  OF  DEFECTS  IN 
TUE  PROCEEDINGS  AGAINST  TUE  DEFENDANT,  OR  TO  PLEAD  IN 
THE   defendant's   NAME. 

§  713.  The  question  has  been  frequently  raised, 
whether  a  garnishee  can,  in  order  to  avoid  a  judgment 
against  him,  avail  himself  of  defects  or  irregularities  in 
the  plaintilf's  proceedings  against  the  defendant.  The 
decision  of  this  point  depends  mainly  on  Avhether  the 
defect  or  irregularity  be  such  as  would  prevent  the  gar- 
nishee from  pleading  the  judgment  against  him,  in  bar 
of  a  subsequent  action  by  the  defendant  for  the  debt  in 
respect  of  which  the  garnishee  was  held  liable.  There 
could  be  no  propriety  in  rendering  a  judgment  against 
a  garnishee,  which  would  not  protect  him  from  a  second 
payment  of  his  debt  to  the  defendant;  while  there 
could  be  still  less  in  permitting  him  to  defeat  the  plain- 
tiff's action,  by  assuming  a  ground  which  the  defendant 
either  did  not  consider  avaikible  to  himself,  or  chose  to 
waive. 

§  714.   In  Massachusetts  and  Maryland,  the  garnish- 
ee's .right  to  inquire  into  the  regularity  of  the  proceed- 
ings against  the  defendant,  has  been  sustained ;  but 
[502] 


cii.  XXX yl]  garnishee's  relation  to  the  main  action.  §  715 

upon  statutory  grounds,  and  not  upon  general  princi- 
ples>     In  Connecticut,  it  was  held,  in  a  proceeding  of 
garnishment  under  execution,  where,  hy  the  terms  of 
the  statute,  a  debtor  of  the  defendant  could  be  charged 
as  garnishee,  only  in  case  the  defendant  was  an  absent 
or  absconding  debtor,  that  the  garnishee  might  plead 
to  the  scire  facias  under  which  he  was  garnished,  that 
the  defendant  was  not,  at  the  time  of  the  garnishment, 
an  absent  or  absconding  debtor,  and  the  plea,  if  true, 
would    discharge   the   garnishee.^     In  Mississippi,  this 
right  of  the  garnishee  has  been  fully  sustained.     There, 
under  a  statute  which  declared  that "  every  attachment  ' 
issued  without  bond  and  affidavit  taken  and  returned, 
is  illegal  and  void,  and  shall  be  dismissed,"  it  was  held, 
upon!a  writ  of  error  sued  out  by  the  garnishee,  that  a 
judgment  against  the  garnishee,  where  such  bond  and 
affidavit  had  not  been  taken  and  returned,  was  errone- 
ous, l>ecause  the  proceedings  against  the  defendant  were 
illegal  and  void.^ 

§  715.  In  South  Carolina,  however,  the  very  reverse 
of  this  doctrine  has  been  held,  under  circumstances 
almost  identical.  There,  in  a  case  where  the  garnishee 
sought  to  overturn  the  plaintiff's  proceedings  because 
the°bond  required  to  b^e  given  by  him  at  the  institution 
of  the  suit  was  not  in  conformity  to  law,  the  court  held 
the  following  language :  "  It  has  been  repeatedly  de- 
cided by  this  court,  that  the  garnishee  cannot  take  ad- 
vantage of  any  errors  or  irregularities  in  the  proceed- 

1  Blake  v.  Jones,  7  Mass.  28  ;  Stone  v.  Magrudcr,  10  Gill  &  Johnson,  383  ; 
Barr  v.  Perry,  3  Gill,  313;  1  Dorsey's  Laws  of  Marjland,  321. 
=  Wootlbridgc  v.  "Winthrop,  1  Root,  557. 
3  Ford  V.  Woodward,  2  Sinedes  &  Marshall,  260. 

[  503  ] 


§  716  garnishee's  relation  to  the  main  action,  [cii.  xxxvi. 

ings  against  tlie  a])scnt  debtor.  The  protection  Avliich 
the  law  has  furnished  to  the  property  of  the  absent 
debtor  is  intended  for  his  benefit,  and  not  that  of  a  third 
person.  The  bond  which  the  law  requires  is  to  shield 
him  from  unjust  suits;  if  he,  therefore,  does  not  think 
fit  to  complain  that  the  bond  has  not  been  taken  in 
conformity  with  the  requisitions  of  the  act,  why  should 
others  be  permitted  to  do  so?  But  it  is  said  the  act 
declares  the  attachment  void,  if  the  bond  be  not  taken 
in  double  the  sum  to  be  attached ;  and  that  the  bond 
not  being  so  taken,  the  court  i?  bound  on  motion  of  any 
one  to  set  aside  the  judgment  and  dismiss  the  attach- 
ment as  a  mere  nullity.  The  court  is  not  bound  to  set 
aside  a  judgment  on  any  ground  of  error  or  irregularity, 
as  already  stated,  except  at  the  instance  of  the  defend- 
ant. A  judgment  is  not  void  because  it  is  erroneous. 
If  it  be  rendered  by  a  court  of  competent  jurisdiction, 
it  must  remain  until  arrested  or  reversed.  The  word 
"void  "  when  used  in  a  legislative  act,  on  such  a  subject 
as  the  one  embraced  by  this  act,  is  to  be  understood 
sjnonymously  with  '•  voidable  ; "  that  is,  it  will  be  de- 
clared void  on  pleading.^ 

§  716.  The  same  ground  has  been  taken  in  Louis- 
iana,^ and  Missouri.'"^  In  Alabama,  it  was  on  several  oc- 
casions ruled  the  same  way;"*  but  in  a  subsequent  case, 
where  garnishees,  as  amici  ciiricc,  moved  to  quash  the  at- 


^  Camberford  v.  Hall,  3  M'Cord,  345.  And  see  Foster  v.  Jones,  1  M-Cord, 
116  ;  Chambers  v.  MoKee,  1  Hill  (S.  C.)  229. 

-  Hanna's  Syndics  v.  Lauring,  10  ^Martin,  5G8. 

'  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  41 G. 

*  Stebblns  v.  Fitch,  1  Stewart,  180;  Thompson  v.  Allen,  4  Stewart  &  Por- 
ter, 184;  Smith  v.  Chapman,  6  Porter,  3G5. 

[504] 


CH.  XXXVI.]  garnishee's  relation  to  the  main  action.  §  717 

tachment  for  want  of  an  affidavit  and  bond,  it  was  held 
that  such  a  proceeding  was  admissible,  on  the  ground 
that  it  had  been  the  long-established  practice  there  to 
entertain  such  a  motion  from  an  (unicii.s  ciiriw,  and  that 
the  persons  so  moving  were  privies  in  interest,  and 
therefore  authorized  to  point  out  defects  in  the  proceed- 


ings.^ 


§  717.  Whether,  however,  the  garnishee  may  or  may 
not  take  advantage  of  defects  in  the  plaintiff's  proceed- 
ings, it  is  quite  evident  that  he  may  not  assume  to  plead 
in  the  defendant's  name,  or  to  interfere,  as  to  the  mer- 
its of  the  cause,  between  plaintiff  and  defendant.  He  is 
viewed  in  the  light  of  a  stake-holder  between  the  par- 
ties, and  all  he  has  to  do  is  to  tell  the  truth,  and  if  his 
declaration  be  controverted,  to  support  it,  and  prevent 
any  improper  decision  being  made  to  his  prejudice.^    ^1 

>  p.  &  M.  Bank  of  Mobile  v.  An.lrc-ws,  8  Porter,  404.  In  Sergeant  on 
Attachment,  p.  100,  it  is  said:  "  On  this  plea  of  nulla  hmCi,  the  garnishee 
mav  take  advantige  of  the  irregularity  of  the  plaintifl's  proceedings  .n  enter- 
in"  iudgment  against  the  defendant  in  the  attachment,  without  having  c.xe- 
culud  a%vrit  ofln-iuiry,  when  the  declaration  was  in  .Usumpsit;"  and  refer- 
ence is  made  to  the  case  of  Pancake  r.  Harris,  10  Serg.  &  Rawle,  109.  With 
all  due  respect  to  the  distinguished  author,  it  is  conceived  that  his  statement 
is  not  sustained  by  the  case,  as  reported.  It  does  not  appear  that  the  gar- 
nishee made  the  point  which  controlle<l  the  decision;  but  we  are  authorized 
to  infer  that  the  court,  ex  mero  motu,  ruled  the  plaintiff  out,  on  a  point  of 
practice.  The  plaintiff  ha.l  not  perfected  his  judgment  against  the  defend- 
ant, by  an  ascertainment  of  ^*e  amount,  without  which  it  was  clearly  imprac- 
ticable for  a  judgment  to  be  rendered  against  the  garnishee  ;  since  it  is  a  well 
settled  principle,  if  not  a  statutory-  regulation,  that  a  ju.lgment  against  the 
defendant  is  an  indispensable  prerecjuisite  to  a  judgment  against  the  gar- 
nishee. It  was  exprcsslv  on  the  ground  that  the  plaintiff  had  not  perfected 
his  ju.lgment  against  the'  defendant,  or,  in  other  words,  had  obtained  only  an 
intt-rlo^utory,  and  not  a  final,  ju.lgment,  that  the  decision  was  given. 

'Kimball  I'.  Plant,  14  Louisiana,  511;   Frazler  i-.  Willcox,  4  Robinson 
(La.)  oil]  Brode  v.  Firemen's  Ins.  Co.,  8  Ibid.  244. 

43  [  ^00  ] 


§  718  garnishee's  relation  to  the  main  action,  [ch.  XXXVI. 

fortiori,  will  he  not  be  permitted,  after  judgment  against 
the  defendant,  to  show  that  the  plaintiff  had  no  just 
demand  against  the  defendant,  or  that  the  judgment 
ought  to  be  altered  or  reversed.^ 

§  718.  But  in  Louisiana  an  exception  to  these  rules 
was  made,  by  allowing  a  garnishee  to  show  as  a  reason 
why  judgment  should  not  be  rendered  against  him,  that 
before  judgment  was  rendered  against  the  defendant, 
the  defendant  was  dead.  This  decision  was  given  upon 
the  ground  that  the  attaching  creditor  would,  in  such 
case,  if  the  garnishee  should  be  charged,  obtain  a  pref- 
erence over  other  creditors  of  the  deceased,  not  author- 
ized by  the  laws  of  that  State.^ 


^  Woodbridge  v.  Winthrop,  1  Root,  557;  Ileffernan  r.  Grjmes,  2  Leigh, 
512;  Lee  v.  Palmer,  18  Louisiana,  405. 
*  Allard  v.  Do  Brot,  15  Louisiana,  253. 

[506] 


CHAPTER   XXXVII. 

■WHERE   ATTACHMENT    IS   A    DEFENCE,   AND    THE   MANNER    OF^ 
PLEADING  IT. 

§  710.  The  operation  of  an  attachment  against  a  gar- 
nishee, as  in  other  cases,  is  compulsory.  lie  has  no 
choice  but  to  pay,  in  obedience  to  the  judgment  of  the 
court  to  Avhose  jurisdiction  he  has  been  subjected;  and 
the  exercise  of  that  jurisdiction  effects  a  confiscation, 
for  the  plaintiff's  benefit,  of  the  debt  due  from  the  gar- 
nishee to  the  defendant.  In  this  proceeding  it  is  an 
invariable  rule,  that  the  garnishee  shall  not  be  preju- 
diced, or  placed  in  any  worse  situation  than  he  would 
have  been  if  he  had  not  been  subjected  to  garnishment ; 
that  is,  if  obliged,  as  garnishee,  to  pay  to  the  plaintifl' 
the  debt  he  owed  to  the  defendant,  he  shall  not  be 
compelled  again  to  pay  the  same  debt  to  the  defendant. 
When,  therefore,  he  issued  for  that  debt,  either  before 
or  after  he  has  been  summoned  as  garnishee,  he  must 
be  allowed  to  show  that  he  has  been,  or  is  about  to  he, 
made  liable  to  pay,  or  has  paid,  the  debt,  under  an  at- 
tachment against  the  defendant,  in  which  he  has  been 
made  garnishee.  To  what  extent  this  defence  will  avail 
him,  and  how  he  may  take  advantage  of  it,  will  consti- 
tute the  subject  of  the  present  chapter,  and  will  be  con- 
sidered in  reference  j^rsf,  to  the  case  of  garnishment 
prior  to  or  pending  suit  brought  by  the  defendant ;  and 

[507] 


§  V21  ATTACHMENT,    A    DKFENCE.  [cil.  XXXVII. 

secondh/,  to   the   case   of  suit  brought   after  judgment 
against  the  garnishee. 

§  720.  I.  Where  ihc  garnkhment  is  prior  io  or  pending 
suit  hroufjhl  b>/  defrmlanf.  In  England,  the  doctrine  has 
long  been  held  that  where  one  has  been  sunnnoned  as 
garnishee,  and  the  defendant  in  the  attachment,  Ijefore 
ju^ment  of  condemnation  of  the  debt,  sues  the  gar- 
nishee for  that  debt,  the  latter  may  plead  the  attach- 
ment in  abatement;^  but  not  in  bar,  until  judgment  be 
recovered  against  him." 

§  721.  The  courts  in  this  country  seem  with  unani- 
mity to  have  taken  the  same  view.  The  question  early 
came  up  in  New  York,  in  a  case  where  a  citizen  of  Bal- 
timore was  summoned  as  garnishee  at  that  place,  and 
afterwards,  on  going  to  New  York,  was  sued  by  the  de- 
fendant in  the  attachment  suit,  and  pleaded  the  attach- 
ment. It  was  agreed  in  the  case  that  if  the  court  should 
consider  the  plea  good,  either  in  abatement  or  bar,  the 
jilaintift'  should  be  nonsuited.  Kent,  C.  J.,  after  noticing 
the  English  decisions,  said  :  "If  we  were  to  disallow  a 
plea  in  abatement  of  the  pending  attachment,  the  de- 
fendant would  be  left  without  projection,  and  be  obliged 
to  pay  the  money  twice :  for  we  may  reasonably  pre- 
sume, that  if  the  priority  of  the  attachment  in  Mary- 
land be  ascertained,  the  courts  in  that  State  would  not 
suffer  that  proceeding  to  be  defeated  by  the  subsequent 
act  of  the  defendant  going  abroad  and  subjecting  him.- 
self  to  a  suit  and  recovery  here. 


^  Brook  V.  Smith,  1  Salkeld,  280. 
*  Xatban  v.  Giles,  5  Taunton,  558. 

[508] 


CH.  XXXVII.]  ATTACIBIENT,   A   DEFENCE.  §  722 

"  The  present  case  affords  a  fair  opportunity  for  the 
.  settlement  and  application  of  a  general  rule  on  the  sub- 
ject. It  is  admitted  by  the  case  that  the  plaintiff  owes 
a  large  debt  to  the  attaching  creditors ;  and  that  the 
defendant  is  a  resident  of  Maryland.  There  is  then  no 
ground  to  presume  any  collusion  between  the  defendant 
and  the  creditors  who  attached ;  and  there  is  no  pre- 
tence that  the  plaintiff'  was  not  timely  notified  of  the 
pendency  of  the  attachment,  or  that  the  attachment  is 
not  founded  on  a  hond  fide  debt,  equal  at  least  in  amount 
to  the  one  due  irom  the  defendant.  If  the  force  and 
effect  of  a  foreign  attachment  is,  then,  in  any  case  to  be 
admitted  as  a  just  defence,  it  would  be  difficult  to  find 
a  sufficient  reason  for  overruling  a  plea  in  abatement  in 
the  present  case."  ^ 

§  722.  The  same  views  have  been  expressed  by  the 
Supreme  Court  of  Pennsylvania;-  by  Washington,  J., 
in  the  Circuit  Court  of  the  United  States  for  the  Third 
Circuit;'^  and  by  the  Supreme  Court  of  the  United 
States.^  In  Massachusetts,  it  is  held  that  the  pendency 
of  an  attachment  is  no  cause  to  abate  the  writ ;  for  non 
constat  that  judgment  will  ever  be  rendered  in  the  at- 
tachment suit  ;  but  that  it  is  a  good  ground  for  a  con- 
tinuance while  the  process  is  pending.^  This  view  has 
been  adopted  in  Louisiana,  in  a  case  where  the  gar- 
nishee's answer  disclosed  the  existence  of  a  prior  attach- 


*  Embrce  r.  Hanna,  5  Johnson,  lOi. 

*  Fitzgerald  r.  Caldwell,  1  Yeatcs,  274  ;  Irvine  r.  Lumbennen's  Bank,  2 
Watts  &  Sergeant,  190. 

*  Choongwo  r.  Jones,  3  Washington,  C.  C.  359. 

*  AVallace  v.  M'Connell,  13  Peters,  136. 
Winthrop  i-.  Carleton,  8  Mass.  45G. 

43  *  [  000  ] 


§  723  ATTACHMENT,   A   DEFENCE.  [CH.  XXXML 

ment,  in  another  StatCj  of  his  property,  in  a  proceeding 
against  him  as  garnishee  of"  tht^  same  delendant.  Tlie. 
cases  are  not  precisely  parallel,  but  the  principle  in- 
volved is  the  same.  The  court  ordered  a  stay  of  far- 
ther proceedings  against  the  garnishee  until  the  decis- 
ion of  the  prior  attachment.^ 

§  723.  The  Supreme  Court  of  Alabama  once  sus- 
tained a  plea  in  abatement,  which  went  to  the  WTit  ;^ 
but  afterwards  fell  into  the  doctrine  declared  in  Massa- 
chusetts, and  sustained  this  position  in  the  following 
language :  "  If  it  be  admitted  that  a  pending  attach- 
ment may  be  pleaded  in  abatement,  it  by  no  means  fol- 
lows that  it  should  be  pleaded  in  abatement  of  the  writ. 
In  general  a  plea  in  abatement  gives  a  better  writ,  and 
in  such  a  case  the  appropriate  conclusion  is,  a  prayer  of 
judgment  of  the  writ,  and  that  it  be  quashed.  But 
w^here  matter  can  only  be  pleaded  in  abatement,  and 
yet  a  better  writ  cannot  be  given,  as  the  writ  does  not 
abate,  the  prayer  of  the  plea  is, '  whether  the  court  will 
compel  further  answer.' 

"  There  are  many  reasons  why  an  attachment  pend- 
ing should  not  be  pleaded  in  abatement  of  the  writ. 
The  entertainment  of  such  pleas,  would  lead  to  the 
most  delicate  and  embarrassing  questions  of  jurisdiction, 
and  in  the  contlict  an  error  connnitted  by  either  court, 
would  lead  to  the  injury  of  one  of  the  parties  litigant. 
Either  the  garnishee  might  be  compelled  to  pay  the 
debt  twice,  or  the  creditor  might  be  injuriously  affected. 
All  these  consequences  are  avoided  by  considering  it  as 

^  Carroll  v.  M'Donogh,  10  Martin,  609. 
"  Crawford  v.  Clute,  7  Alabama,  157. 

[510] 


en.  XXXVII.]  ATTACHMENT,   A   DEFENCE. 


§724 


cause  for  suspending  the  action  of  tlie  creditor,  until 
the  attachment  against  his  debtor  is  determnied,  Avhen 
it  can  be  certainly  known  what  the  rights  of  the  parties 
are.     When,  therefore,  the  fact  of  an  attachment  pend- 
ing for  the  same  debt,  is  made   known  to  the   court, 
where  the  creditor  of  the  garnishee  has  brought  suit,  it 
will  either  suspend  all  proceedings  until  the  attachment 
suit  is  determined,  or  render  judgment  with  a  stay  of 
execution,  which  can  be  removed,  or  made  perpetual, 
in  whole  or  in  part,  as  the  exigency  of  the  case  may 
require.     And  as  this  course  is  equally  safe,  and  pro- 
ductive of  less  delay,  it  would  seem  to  be  the  most  eli- 
gible."^    The  court  also  intimated  that  such  a  stay  of 
execution  would  be  directed  after  judgment,  notwith- 
standing an  omission  or  an  ineffectual  attempt  to  plead 
the  master  in  abatement.^    In  Pennsylvania  an  attempt 
was  made  to  sustain  a  plea  of  payment,  by  showing  a 
priur  attachment  of  the  debt  j  but  it  was  overruled.=^ 

§  724.  In  England,  it  is  held  that  an  attachment  can- 
not be  pleaded  puis  darrein  continuance;  because  after 
action  brought  upon  a  debt,  it  cannot  be  attached  un- 
der the  custom  of  London.*  In  a  case  before  the  Su- 
preme Court  of  Pennsylvania,  Yeates,  J.,  assigned,^  no 
doubt,  the  true  reason  why  this  rule  obtained  in  Eng- 
land, that  when  once  a  suit  has  been  instituted  in  the 

1  Crawford  r.  SlaJe,  9  Alabama,  887.  See  also  Galego  v.  Galego,  2 
Brockenborough,  285. 

«  Crawford  v.  Clutc,  7  Alabama,  157  ;  Crawford  v.  Slade,  9  Alabama,  887. 
See  also  Fitzgt-ral.l  v.  Caldwell,  4  Dallas,  251. 

»  Upde^raff'i-.  Spring,  11  Sergeant  &  Rawle,  188. 

*  Priv.  Lond.  272;  3  Leonard,  210;  Palmer  r.  Hooks,  1  Ld.  Raymond, 
727;  Savage's  Case,  1  Salkeld,  291. 


§  724:  ATTACILMENT,    A    DEFENCE.  [cil.  XXXVII. 

superior  courts  of  Westminster,  for  the  recovery  of  a 
debt  or  demand,  though  it  has  not  been  followed  by  a 
judgment,  the  inferior  courts  cannot  by  issuing  an  at- 
tachment, prevent  the  plaintift'  from  proceeding.^  In 
this  country  the  question  turns  altogether  upon  the 
point  whether  a  debt  in  suit  can  be  attaclied."  AVher- 
ever  the  alhrmative  of  this  question  is  hehl,  it  must  fol- 
low, of  necessity,  that  an  attachment,  pending  the  ac- 
tion, may  be  pleaded  jmis  darrein  continuance.  In  Ala- 
bama, the  point  came  up  in  a  case  where  the  action  on 
the  debt  and  the  attachment  were  in  the  same  court, 
and  the  plea  was  sustained.'^  But  where  the  action  and 
the  attachment  were  in  courts  of  different  jurisdictions 
—  the  former  in  a  District  Court  of  the  United  States, 
and  the  latter  in  a  State  court  —  it  was  decided  by  the 
Supreme  Court  of  the  United  States  that  the  plea  was 
bad  on  demurrer.  In  the  opinion  of  that  court  on  this 
point  the  following  views  are  expressed  :  "  The  plea 
shows  that  the  proceedings  on  the  attachment  were  in- 
stituted after  the  commencement  of  this  suit.  The 
jurisdiction  of  the  District  Court  of  the  United  States, 
and  the  right  of  the  plaintiff  to  prosecute  his  suit  in 
that  court,  having  attached,  that  right  could  not  be  ar- 
rested or  taken  away  by  any  proceedings  in  another 
court.  This  would  produce  a  collision  in  the  jurisdic- 
tion of  courts,  that  would  extremely  embarrass  the  ad- 
ministration of  justice.  If  the  attachment  had  been 
conducted  to  a  conclusion,  and  the  money  recovered  of 
the  defendant,  before  the  commencement  of  the  present 


^  ]\I'Carty  v.  Emlen,  2  Yeates,  190. 

2  See  Chapter  XXXII. 

^  Hitt  V.  Lacey,  3  Alabama,  104. 

[  512  ] 


CH.  XXXVII.]  ATTACIIMllXT,    A    DEFENCE.  §  T25 

suit,  there  can  be  no  doubt  that  it  might  have  been  set 
up  as  a  payment  upon  the  note  in  question.     And  if 
the  defendant  would   have  been  protected  pw  ^<^^nto, 
under  a  recovery  had  by  virtue  of  the  attachment,  and 
could  have  pleaded   such  recovery  in  bar,  the  same 
principle  would  support  a  plea  in  abatement,  of  an  at- 
tachment pending  prior  to  the  conuncncement  of  the 
present  suit.     The  attachment  of  the  debt,  in  such  case, 
in  the  hands  of  the  defendant,  would  fix  it  there,  in 
favor  of  the  attaching  creditor,  and  the  defendant  could 
not  afterwards  pay  it  over  to  the  plaintiff.    The  attach- 
ing creditor  would,  in  such  case,  acquire  a  lien  upon 
the  debt,  binding  upon  the  defendant,  and  which  the 
courts  of  all  other  governments,  if  they  recognize  such 
proceedings  at  all,  could  not  fail  to  regard.    If  this  doc- 
trine be  well  founded,  the  priority  of  suit  will  determine 
the  riglit.    The  rule  must  be  reciprocal ;  and  where  the 
suit  in  one  court  is  commenced  prior  to  the  institution 
of  proceedings  under  attachment  in  another  court,  such 
proceedings  cannot  arrest  the  suit;  and  the  maxim,^^?^/ 
pior  est  imjm'cpolior  esfjnre,  must  govern  the  case."^ 

I  725.  The  question  has  arisen  and  been  passed 
upon,  how  far  the  pendency  of  an  attachment  relieves 
the  garnishee  from  accountability  to  the  defendant,  after 
the  termination  of  the  attachment  suit,  for  interest  on 
the  debt,  during  the  pendency  of  that  suit  The  Su- 
preme Court  of  Pennsylvania  held  it  to  be  clearly  the 
general  rule  that  a  garnishee  is  not  liable  for  interest 
while  he  is  restrained  from  the  payment  of  his  de1jt  by 
the  legal  operation  of  an  attachment ;  unless  it  should 


1  Wallace  v.  IM-Connell,  13  Peters,  13C. 

[513] 


§  727  ATTACHMENT,   A    DEFENCE.  [cil.  XXX VII. 

appear  that  tliere  is  fraud,  or  collusion,  or  unreasonable 
delay  occasioned  by  the  conduct  of  the  garnishee.^ 
And  it  was,  therefore,  held,  that  an  attachment  might 
be  pleaded  in  bar  of  interest  on  the  debt,  during  the 
pendency  of  the  attachment  suit,  although  the  garnishee 
had  not  paid  any  thing  under  the  attachment  and  it  had 
been  discontinued.^  This  rule  proceeds  upon  the  pre- 
sumption, that  the  garnishee  being  liable  to  be  callo^l 
npon  at  any  time  to  pay  the  money,  has  not  used  it. 
But  where  one  attaches  money  in  his  own  hands,  and 
thereby  becomes  both  plaintiff  and  garnishee,  no  neces- 
sity exists  for  his  holding  the  money  to  answer  the  at- 
tachment, and  consequently  no  presumption  can  arise 
that  he  has  not  used  it;  and  he  will,  therefore,  be 
charged  with  interest  during-  the  pendency  of  the  at- 
tachment.'^ 

§  726.  In  pleading  a  pending  attachment  in  abate- 
ment, the  plea  must  contain  averments  of  all  the  facts 
necessary  to  give  the  court  in  which  the  attachment  is 
pending  jurisdiction,  and  must  show  whether  the  whole 
or  what  portion  of  the  debt  has  been  attached.  A  plea, 
therefore,  setting  forth  that  the  defendant  had  been 
summoned  as  garnishee,  under  process  issued  on  a  judg- 
ment, but  not  stating  the  amount  of  the  judgment,  is 
bad  on  general  demurrer.'^ 

§  727.   II.   Where  suit  is  hrougJit  after  judgment  rendered 


^  Fitzgerald  v.  Caldwell,  2  Dallas,  215. 

-  Updegraff  r.  Spring,  11  Sergeant  &  Rawie,  188. 

*  Willings  V.  Consequa,  Peters,  C.'C.  301. 

*  Crawford  v.  Clute,  7  Alabama,  157 ;  Crawford  v.  Slade,  9  Ibid. 

[514] 


CH.  XXXVII.]  ATTACHMENT,   A   DEFENCE.  §  *^28 

against  the  ganmhee.  When,  by  a  court  having  jurisdic- 
tion of  the  action,  and  of  the  person  of  a  garnishee, 
judgment  is  rendered  against  him,  and  he  has  satisfied 
it  in  due  course  of  law,  such  judgment  is  conclusive  of 
all  matters  of  right  and  title  decided  by  the  court,  and 
constitutes  a  complete  defence  to  any  subsequent  action 
by  the  defendant  against  the  garnishee,  for  the  amount 
which  the  latter  was  compelled  to  pay  ;^  and  tjiis  though 
the  court  be  a  foreign  tribunal.^ 

§  728.  By  this,  however,  is  not  to  be  understood  that 
the  judgment  against  the  garnishee  amounts  to  res  ud- 
judicata,  as  between  him  and  the  attachment  defendant, 
so  as  to  preclude  the  latter  from  claiming  more  in  his 
action  than  the  garnishee  was  considered,  in  the  attach- 
ment proceedings,  to  owe.  AVcre  such  the  case,  it 
would  be  in  the  power  of  a  garnishee,  by  confessing  in 
hi.s  answer  a  smaller  indebtedness  than  actually  existed, 
to  practice  a  fraud  upon  his  creditor  which  would  be 
irremediable.'^  But  where  a  part  or  the  whole  of  the 
debt  of  the  garnishee  to  the  defendant  has  been  paid 
under  the  judgment  against  him,  such  payment  is  as 
effectual  a  bar,  either  joro  iaiUo  or  complete,  to  a  subse- 
quent action  by  the  defendant  upon  that  debt,  as  if  the 
payment  had  been  made  to  the  defendant  himself 
And  where,  in  an  action  against  the  garnishee,  by  his 
creditor,  the  attachment  defendant,  the   agreed  state- 


1  Killsa  r.  Lcrmond,  6  Maine,  116;  Holmes  v.  Remsen,  20  Johns.  229; 
Hitt  r.  Lacy,  3  Alabama,  104  ;  Foster  v.  Jones,  15  :Mass.  185  ;  ^Mills  v.  Stew- 
art, 12  Alabama,  90;  IMoore  v.  Spacknian,  12  Sergeant  &  Rawle,  287; 
Coaxes  V.  Roberts,  4  Rawle,  100. 

'■  Barrow  v.  West,  23  Pick.  270;  Taylor  v.  Phelps,  1  Harris  &  Gill,  492. 

*  Robeson  v.  Carpenter,  7  Martin,  X.  S.  30. 

[  SIS  ] 


§  729  ATTACHMENT,   A    DEFENCE.  [cil.  XXXVII. 

meiit  of  facts  submitted  \o  the  court  was  silent  as  to 
"whether  the  amount  of  the  iuclf»:ment  ajjrainst  the  ""ar- 
nishee  was  equal  to  his  debt  to  the  defendant,  it  was 
presumed  it  was  so.^ 

§  729.  But,  though  judgment  against  the  garnishee, 
and  satisfxction  thereof,  constitute  a  complete  bar  to  an 
action  by  the  attachment  defendant,  to  the  extent  of 
the  amount  so  paid,  is  the  judgment  alone,  without  sat- 
isfaction, such  a  bar  ?  On  this  point  the  authorities  do 
not  agree.  In  England,  it  is  held  that  attachment  and 
condenmation  of  a  debt,  is  a  bar  to  an  action  upon  the 
same  debt.^  In  this  country  the  same  has  been  held  in 
Maine,"^  and  Massachusetts.*  In  the  Circuit  Court  of 
the  United  States  for  the  Third  Circuit,  Justice  Wash- 
ington held,  that  a  judgment  in  attachment,  where  the 
attachment  was  laid  on  eflects  in  the  plaintiff's  hands, 
might  be  pleaded  in  bar,  by  way  of  offset,  or  given  in 
evidence  on  notice.^  In  Pennsylvania,  however,  it  is 
held  that  to  entitle  the  garnishee  to  a  plea  in  bar,  it 
must  appear  that  he  has  been  compelled  to  pay  the 
debt,  or  that  an  execution  has  been  levied  on  his  prop- 
erty.^ And  in  Georgia,  it  was  held,  in  an  action  by  an 
indorsee  against  the  maker  of  a  promissory  note,  trans- 
ferred to  him  after  the  maker  had  been  summoned  as 


^  McAllister  r.  Brooks,  22  Maine,  80. 

*  Savage's  Case,  1  Salkeld,  291  ;  M'Daniel  r.  Hughes,  3  East,  3G7;  Tur- 
bill's  Case,  1  Saunders,  67,  Note  1. 

^Matthews  v.  Houghton,  11  Maine,  377;  Xorris  v.  Hall,  18  Ibid.  332; 
McAllister  v.  Brooks,  22  Ibid.  80. 

*  Perkins  v.  Parker,  1  Mass.  117;  Hull  v.  Blake,  13  Ibid.  153. 
^  Cheongwo  v.  Jones,  3  Washington,  C.  C.  359. 

®  Lowry  V.  Ltimbermen's  B'k,  2  Watts  &  Sergeant,  210. 

[510] 


ClI.  XXXVII.]  ATTACHMEXT,    A    DEFENCE.  §  730 

garnishee,  that  the  recovery  of  judgment  against  the 
garnishee,  without  satisftiction,  did  not  constitute  a  de- 
fence to  the  action  ;  and  that,  if,  after  judgment  obtained 
against  the  maker  of  the  note,  he  should  satisfy  the 
judgment  rendered  against  him  as  garnishee,  the  judg- 
ment on  the  note  would  thereby  be  extinguished ;  ex- 
cept, perhaps,  for  costs.^ 

§  730.  The  Supreme  Court  of  Massachusetts  has,  how- 
ever, somewhat  modified  its  first  ruling  on  this  subject, 
in  a  case,  the  facts  of  which  were  thus  stated  in  the 
opinion  of  the  court.  "This  is  assumpsit  by  the  in- 
dorsees against  the  promisors  on  a  promissory  note 
given  at  St.  Louis,  in  the  State  of  Missouri.  The  de- 
fendants plead  in  bar,  that  after  the  making  of  the  note, 
which  was  given  to  one  Oliver  Hudson,  upon  a  purchase 
at  auction  of  the  goods  of  Hudson,  and  in  satisfaction 
of  a  precedent  debt  to  Hudson,  by  Rundlett  (the  de- 
fendant in  the  action)  and  his  partner  Ilandolph  jointly, 
they  were  attached  as  the  garnishees  of  said  Hudson, 
and  upon  a  disclosure  of  the  circumstances  under  which 
this  note  was  given,  they  were  adjudged  liable  as  such 
garnishees,  to  Hill  &  M'Gunnegle,  the  plaintiffs  in  that 
suit.  It  is  not  alleged  that  they  have  paid  over  any 
thing  in  pursuance  of  the  judgment  in  that  suit,  nor  is 
the  law  of  Missouri  set  out  to  such  an  extent  as  to  en- 
able the  court  to  determine  what'  is  the  effect  of  such  a 
judgment  in  that  State.  On  oyer  the  judgment  and 
proceedings  are  set  out  at  lengfh  in  the  replication. 
The  proceedings  are  detailed  so  far  as  to  show  that 
Rundlett,  for  the  firm  of  Rundlett  &  Randolph,  gar- 

'  Biannon  i'.  Xoble,  8  Georgia,  549. 

44  [ 517  ] 


§  730  ATTACUMENT,    A    DEFENCE.  [cil.  XXXVII. 

iiisliees  in  the  case,  having  in  his  answer  admitted  that 
they  were  indebted  to  said  OHver  Hudson  in  the  sum 
of  $379.74,  it  was  considered,  that  the  pLiintifls  recover 
against  said  Kundlett  &  Randolph,  garnishees  as  afore- 
said, the  said  sum,  etc."  To  this  plea  there  was  a  de- 
murrer, assigning  the  following  causes:  1.  That  it  does 
not  appear  from  the  plea,  that  lUuidlett  k  liandolph 
have  ever  paid  any  thing  on  account  of  the  judgment 
recovered  against  them  as  garnishees,  nor  that  they 
were  liable  to  pay  the  same  when  the  plea  was  pleaded  : 
2.  That  the  facts  set  forth  in  the  plea  are  only  a  ground 
for  a  continuance,  and  not  for  a  plea  in  bar,  until  Kund- 
lett &  Randolph  have  paid  the  money  on  the  judgment 
against  them  as  garnishees :  3.  That  it  appears  from 
the  record  that  Hill  &  M'Gunnegle  recovered  judgment 
against  Hudson  for  $1,007.79,  and  against  four  other 
per,sons,  as  garnishees,  divers  sums,  making  together 
$1,724.00;  and  the  plea  does  not  show  whether  those 
other  garnishees,  or  either  of  them,  have  or  have  not 
paid  any  part  of  the  judgments  recovered  against  them 
as  garnishees. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  court.  '•  It 
has  been  very  well  settled  in  this  commonwealth,  that 
a  judgment  against  a  garnishee  in  another  State,  where 
the  court  has  jurisdiction  of  the  person  and  of  the  sub- 
ject-matter, will  protect  one  here,  who  has  been  obliged 
to  pay,  or  is  compellable  to  pay,  in  pursuance  of  such 
judgment,  although  it  be  a  debt  due  on  a  promissory 
note  or  other  negotiable  security,  although  no  such 
judgment  would  have  been  rendered  against  a  gar- 
nishee or  trustee  under  our  laws,  and  althoui^-h  such 
law  appears  to  us  a  little  unreasonable. 

"  He  who  pays  under  the  judgment  of  a  tribunal  hav- 
[518] 


CH.  xxxvil]  attachment,  a  defence.  §  i''30 

ing  legal  jurisdiction  to  decide,  and  adecjuate  power 
over  the  person  or  property,  to  compel  obedience  to  its 
decisions,  has  an  indisputable  claim  to  protection.  But 
upon  general  principles,  one  who  has  not  yet  been  com- 
pelled to  pay,  and  who  may  never  be  obliged  to  pay  to 
another,  who  has  attached  the  debt  in  his  hands, 
although  he  may  have  good  right  to  insist  that  proceed- 
ings ought  not  to  be  commenced  or  prosecuted  against 
him,  whilst  his  hands  are  tied,  and  he  is  legally  prohib- 
ited from  paying  his  debt,  and  so  may  have  good  ground 
for  an  abatement  or  stay  of  proceedings,  seems  in  no 
condition  to  deny  the  plaintiff's  right  to  recover  his 
debt,  absolutely  and  forever. 

« In  examining  the  record  of  the  judgment,  as  set  out 
in  the  replication,  it  does  not  appear,  that  any  execu- 
tion has  ever  been  awarded.     But  it  does  appear  that 
the  whole  debt  due  to  the  plaintiffs  in  that  suit,  as  set- 
tled by  the  judgment,  was  §1,007.79  with  costs;  and 
that  other  garnishees  were  charged,  in  precisely  the 
same  terms  with  the  defendants,  in  several  sums,  which, 
together  with  the  judgment  against  the   defendants, 
made  upwards  of  S'-^^O^^  that  is,  more  than  double  the 
amount.     It  is  impossible,  therefore,  to  consider,  that 
these   debts  became  absolutely  transferred  and  made 
debts  due  from  the  garnishees  to  the  attaching  credi- 
tor :  the  more  rational  inference,  therefore,  would  be, 
that  by  the  law  of  that  State  such  judgment  is  deemed 
to  operate  as  a  sequestration,  as  a  lien,  making  these 
sums  chargeable  and  liable  in  the  hands  of  the  gar- 
nishees to  the  amount  of  the  attaching  creditor's  debt, 
and  no  further.     If  this  is  not  a  just  inference,  if  the 
effect  of  this  adjudication  was  absolutely  to  transfer  the 
debt,  to  extinguish  the  relation  of  debtor  and  creditor 

[5191 


§  731  ATTACHMENT,    A    DEFENCE.  [cil.  XXX VII. 

between  the  garnishee  and  the  original  proprietor  and 
present  indorser  of  the  note,  the  haw  of  Missouri  giving 
it  that  extraordinary  efiect,  shoukl  have  been  set  out ; 
but  as  it  is  not  done,  the  plea  in  bar  cannot  be  sup- 
ported." 

The  court  then  enter  upon  an  examination  of  the  at- 
tachment law  of  JNIissouri,  and  find  there  a  sullicient 
ground  for  affirming  the  position  previously  announced, 
"that  the  judgment  against  the  garnishees  amounts  to 
nothing  more  than  a  lieu  on  the  fund  in  their  liands, 
and  even  that  is  a  provisional  one,  to  take  eftect  only 
in  case  that  other  funds  which  are  first  chargeable, 
shall  prove  insufficient.  The  court  are,  therefore,  of 
opinion,  that  notwithstanding  the  judgment,  until  an 
execution  has  Ijcen  awarded,  and  the  garnisliee  has 
been  called  on  or  compelled  to  pay,  it  is  not  such  a 
payment,  merger,  or  discharge  of  the  original  debt,  as 
to  be  pleaded  in  bar,  and  therefore,  that  the  plea  in  this 
case,  not  stating  either  payment  or  execution  awarded, 
is  bad."  1 

§  731.  A  case  came  before  Story,  J.,  on  the  circuit, 
in  which  the  effect  to  be  given  to  a  judgment  against  a 
garnishee  was  considered,  where  it  appeared  that  the 
plaintiff  in  the  attachment  had,  by  his  neglect  to  com- 
ply with  the  local  laws,  put  his  judgment  in  a  state  of 
suspension,  so  that  execution  could  not  issue  upon  it, 
and  it  could  not  be  revived  by  a  scire  facias.  The  court 
there  held  that  the  lien  of  the  judgment  against  the 
garnishee  was  lost  by  the  laches  of  the  plaintiff,  and 


^  Meriam  v.  Rundlett,  13  Pick.  511. 

[520] 


CII.  XXXYII.]  ATTACHMENT,   A    DEFENCE.  §  733 

that  the  judgment  was  no  defence  agamst  an  action  for 
the  debt.i 

§  732.  Where  a  payment  nndcr  a  judgment  against 
a  garnishee  is  relied  on  as  a  defence  against  a  suit  by 
the  creditor  of  the  garnishee,  it  is  indispensable  that 
the  payment  should  be  made  legally,  or  the  defence 
will  be  unavailing.  If  the  garnishee  pay  when  he  is 
not  legally  bound  to  do  so,  he  cannot  avail  himself  of 
such  payment  any  more  than  he  could  of  a  mere  vol- 
untary payment  to  one  to  whom  his  creditor  might  be 
indebted.'^ 

§  733.  Thus,  in  Pennsylvania,  where  a  statute  re- 
quired that  Ijcfore  payment  could  be  exacted  from  a 
garnishee  the  plaintiff  should  give  a  bond  to  answer  to 
the  defendant,  if  he  should,  within  a  year  and  a  day, 
disprove  or  avoid  the  debt ;  and  a  garnishee  paid  the 
amount  of  the  judgment  to  the  attachment  plaintiff, 
H-ithout  execution  and  without  such  bond  being  given  ; 
It  was  held  that,  as  his  defence  to  an  action  on  the 
debt  rested  on  his  having  been  compelled  by  due  course 
of  law  to  pay  it  as  garnishee,  and  he  in  iiict  had  not 
and  could  not  have  been  compelled  so  to  pay  it,  the  pay- 
ment he  had  made  was  no  defence  to  the  action.^  The 
vSupremo  Court  of  Mississippi,  upon  the  authority  of  the 
case  in  Pennsylvania,  held  the  same  doctrine  in  a  simi- 
lar case.^ 


*  Flower  r.  Tarkor,  3  Mason,  24  7. 

-  Harmon  v.  Bircliard,  8  Blackford,  418. 

»  Myers  v.  Urich,  1  Binney,  25.   See  also  Meyer  v.  Lobengeir,  4  Watts,  .390. 

*  Oidham  r.  Ledbetter,  1   Howard  (Mi.)  43;  Grissom  i.  Reynolds,  Ibid. 
570. 

44=^-  [521] 


§  735  ATTACHMENT,    A    DEFENCE.  [ciI.  XXXVII. 

§  734.  In  Connecticut,  there  is  a  case  in  ^vhicll  the 
facts  were  as  follows.  A.  sued  out  an  attachnicnt 
against  B.,  and  summoned  C.  as  garnishee.  A.  having 
obtained  judgment  and  execution  against  B.,  caused  de- 
mand to  be  made  upon  C.  for  the  goods  and  effects  of 
B.,  towards  satisfying  the  execution,  but  none  were  ex- 
posed. B.  then  sued  C,  who  was  still  liable  to  A.  as 
garnishee.  C,  being  threatened  by  A.  with  a  scire  facias 
against  him  as  garnishee,  to  avoid  cost,  gave  a  note  in 
satisfaction  of  so  much  as  he  owed  B.,  which  note  was 
in  the  following  form :  "  Value  received  I  promise  to 
jDay  A.,  ^344.02,  with  interest,  whenever  a  certain  suit 
in  favor  of  B.,  now  pending  against  me,  shall  be  deter- 
mined —  provided  said  suit  shall  be  determined  in  my 
favor — otherwise  this  note  is  to  be  given  up  to  me." 
It  was  held  that  this. was  a  sufficient  payment  to  protect 
C.  against  a  judgment  in  favor  of  B.^  It  is  very  diffi- 
cult to  understand  the  ground  for  such  a  decision.  The 
court  gave  no  opinion.  It  is  not  easy  to  discover  how 
the  note  could  be  considered  as  a  payment  at  all,  or 
any  thing  more  than  an  agreement  to  pay  on  a  certain 
contingency ;  much  less  a  payment  in  obedience  to  a 
legal  proceeding. 

§  735.  It  will  have  been  noticed  that  the  cases  in 
Pennsylvania  and  Mississippi,  just  referred  to,  rest  upon 
the  non-performance  of  an  act  by  the  plaintili;  without 
the  performance  of  which,  it  was  declared  by  statute,  in 
the  former  State,  that  execution  should  not  issue 
against  the  garnishee;  in  the  latter,  that  payment 
should  not  be  exacted  by  the  plaintiff.     The  act  to  be 

^  Cutler  V.  Baker,  2  Dav,  498. 

[622] 


en.  XXXVII.]  ATTACHMENT,    A    DEFENCE.  §  737 

done  by  the  plaintiff  in  each  case,  was,  by  express  en- 
actment, a  condition  precedent  to  his  obtaining  satisfac- 
tion of  his  demand  from  the  garnishee ;  and  it  was, 
therefore,  in  the  garnishee's  power  to  have  successfully 
resisted  payment  to  the  plaintiff  until  that  condition 
had  been  performed  ;  failing  to  do  which  his  payment 
was  regarded  as  a  voluntary  act,  and  as  such  no  protec- 
tion against  an  action  on  the  debt,  respecting  which  he 
was  charged  as  garnishee. 

§  736.  Another  question,  however,  here  occurs  —  is 
the  garnishee  to  be  held  responsible  for  the  regularity 
of  the  proceedings  in  the  suit  against  the  defendant  ? 
To  hold  him  to  such  responsibility  would  be  impossible, 
where,  as  in  some  States,  he  is  not  permitted  to  inquire 
into  the  regularity  of  those  proceedings;^  and  mani- 
festly unjust  in  any  case,  since  he  is  but  a  mere  stake- 
holder between  other  parties,  with  no  interest  in  the 
result,  and  should  not  be  compelled  to  incur  the  trouble 
and  expen.se  'of  maintaining  throughout,  and  to  extrem- 
ity, an  antagonistic  po.sition  to  the  plaintiff  This  he 
must  do,  if,  in  order  to  protect  himself  by  his  payment 
as  garnishee,  he  is  compelled  to  watch  the  regularity  of 
the  plaintiff's  proceedings ;  for  the  obligation  once  im- 
posed cannot  be  di.scharged  by  any  thing  short  of  con- 
tinued defence  until  those  proceedings  be  sanctioned 
by  the  court  of  last  resort. 

§  737.  The  only  State  in  which  this  obligation  has 
been  imposed  on  the  garnishee,  is  Mississippi.  There 
it  is  declared   by  statute   that  an  attachment  issued 

1  See  Chapter  XXXVI. 

[  523  ] 


§  730  ATTACHMENT,   A    DEFENCE.  [ciI.  XXXVII. 

without  a  bond  such  as  the  statute  requires,  is  void  and 
shall  be  dismissed;  and  though  judgment  may,  notwith- 
standing, be  given  against  the  garnishee  in  a  case  where 
the  bond  does  not  conform  to  the  requirement  of  the 
statute,  yet  it  is  held  that  such  a  judgment  would  be 
no  bar  to  a  subsequent  recovery  against  him  by  his 
creditor,  and  that  it  is  his  duty  to  see  that  the  law  is 
pursued.^  In  Alabama,  however,  a  different  rule  pre- 
vails. There,  in  a  case  of  an  attachment  issued  by  a 
justice  of  the  peace,  for  a  sum  beyond  his  jurisdiction, 
and  upon  an  insufficient  affidavit,  a  garnishee  was  sub- 
jected to  judgment  and  execution  ;  and  afterwards  was 
sued  for  the  debt  by  the  attachment  defendant,  and 
pleaded  in  bar  his  payment  as  garnishee ;  and  it  was 
decided  that  though  the  proceedings  before  the  justice 
were  erroneous,  the  garnishee  was  not  required  to  look 
into  and  contest  them,  and  that  his  payment  under 
those  proceedings  was  a  valid  defence.^ 

§  738.  But  though  not  bound  to  superintend  a  de- 
fence for  the  defendant,  and  not  answerable  for  such 
defects  and  irregularities  in  the  proceedings  as  relate 
only  to  the  mutual  rights  of  the  original  parties  to  the 
attachment  suit,  the  garnishee  should  know  that  the 
proceedings  against  himself  are  valid,  and  such  as  he  is 
legally  compelled  to  obey.^ 

§  739.  In  order  to  entitle  one  to  plead  an  attachment 
as  a  conclusive  defence,  there  should  be  no  neglect,  col- 


Ford  V.  Hurd,  4  Smedes  &  Marshall,  683. 

Parmer  v.  Ballard,  3  Stewart,  326  ;  Tubb  v.  Madding,  Minor,  129. 

Harmon  v.  Birchard,  8  Blackford,  418. 

[  524  ] 


CII.  XXXVII.]  ATTACHMENT,   A   DEFENCE.  §  T41 

lusion,  or  misrepresentation  on  his  part,  in  tlie  progress 
of  the  attachment  suit.  For  if  his  conduct  be  deceptive, 
and  his  statements  untrue,  and  especially  if  this  be  so 
in  collusion  with  the  attachment  plaintiff,  the  judgment 
will  not  be  considered  conclusive  against  his  creditor.^ 

§  740.  In  no  case  is  the  importance  of  great  care  in 
the  framing  of  a  garnishee's  answer,  more  strikingly  en- 
forced, than  in  connection  with  the  subsequent  use  of 
the  judgment  against  him  as  garnishee,  as  a  defence  to 
an  action  upon  the  debt  in  respect  of  which  the  judg- 
ment was  rendered.  For  he  cannot  avail  himself  of 
such  judgment,  or  of  a  payment  imder  it,  as  a  defence, 
unless  it  appear  that  the  money  paid  was  on  account  of 
the  same  debt  for  which  he  is  sued.  And  as  the  record 
of  the  recovery,  embracing  the  answer  of  the  garnishee, 
must  be  given  in  evidence  in  the  action  by  the  creditor 
against  him  who  was  garnishee,  the  latter  should  not 
fail  in  his  answer  to  describe  particularly  the  debt  in 
respect  of  which  he  is  garnished,  and  to  state  every  fact 
within  his  knowledge  having  any  bearing  upon  his  lia- 
bility ;  so  that  afterwards  the  record  in  the  attachment 
suit  shall  exhibit  all  that  is  necessary  to  a  successful 
defence  against  an  action  for  the  same  debt.  The  im- 
portance of  these  suggestions  may  be  illustrated  by 
reference  to  one  or  two  cases. 

§  741.  A.  answered  as  garnishee,  that  he  was  in- 
debted to  the  defendant,  as  executor  of  B.,  in  a  certain 
sum,  but  did  not  state  the  nature  of  the  debt.  After- 
wards, on  being  sued  by  an  assignee  of  a  note  given  by 

1  Coates  V.  Roberts,  4  Rawle,  1 00. 

[525] 


§  743  ATTACHMENT,   A   DEFENCE.  [cil.  XXXVII. 

his  testator  to  the  clefenilant,  he  pleaded  the  judgment 
which  had  been  rendered  against  him  as  garnisliee,  and 
payment  thereof,  in  bar ;  but  the  plea  was  held  bad,  on 
demurrer,  because  it  did  not  aver  that  the  debt  in  re- 
spect of  which  he  was  garnished  was  the  same  as  that 
sued  upon.^ 

§  742.  A.  and  B.  were  joint  makers  of  a  note  to  C. 
After  its  execution,  A.  was  summoned  as  garnishee  of 
C,  and  did  not  answer,  but  suffered  judgment  by  default 
to  be  given  against  him,  and  paid  the  judgment.  After- 
wards A.  and  B.  were  sued  on  the  note  by  C,  and  set 
up  the  payment  of  the  judgment,  as  a  payment  joro  ianto; 
but  it  was  held  insufficient,  because  affording  no  evi- 
dence that  A.  was  charged  as  garnishee  on  account  of 
the  note.- 


§  743.  Usually,  as  between  the  garnishee  and  the 
defendant  in  the  attachment,  difficulty  is  not  likely  to 
arise  from  insufficiency  in  the  garnishee's  answer ;  but 
as  between  the  garnishee  and  an  assignee  of  the  debt, 
cases  may  constantly  arise  in  which  the  garnishee  may, 
for  want  of  fulness  and  explicitness  m  his  answer,  be 
compelled  to  pay  his  debt  a  second  time.  If  at  any 
time  prior  to  judgment  against  a  garnishee,  he  become 
aware  of  an  assignment  of  his  debt,  made  before  the 
garnishment,  it  is  his  duty  to  bring  that  fact  to  the 
attention  of  the  court,  in  order  that,  if  practicable,  the 
assignee  may  be  cited  to  substantiate  his  claim,  or  that 


*  Harmon  r.  Birchard,  8  Blackford,  418.    See  Humphrey  v.  Barns,  Croke 
Eliz.  691. 

-  Hutchinson  v.  Eddv,  29  Maine,  91. 

[526]    ' 


CH.  XXXVII.]  ATTACHMENT,    A    DEFENCE.  §  744 

the  court  may  withhold  judgment.  If  the  garnishee, 
knowing  the  existence  of  such  an  assignment,  malve  no 
mention  of  it  in  his  answer,  the  judgment  against  him 
will  be  no  protection  to  him  against  an  action  by  the 
assignee.^  Thus,  in  a  suit  by  an  assignee  in  bankruptcy, 
in  Louisiana,  it  was  held  to  be  no  defence  that  the  de- 
fendant had  paid  the  debt  as  garnishee  of  the  bankrupt, 
when  it  appeared  that  in  his  answer  as  garnishee  he 
made  no  mention  of  the  bankruptcy  of  his  creditor, 
though  he  knew  the  fact,  and  would  not  have  been 
charged  as  garnishee  if  he  had  disclosed  it.^ 

§  744.  In  Alabama,  the  statutory  practice  is,  where 
a  garnishee  fiiils  to  answer,  to  render  judgment  nisi 
against  him,  for  the  full  amount  of  the  plaintiff's  de- 
mand ;  upon  which  judgment  a  scire  facias  issues  against 
the  garnishee,  returnable  to  the  next  term  of  the  court, 
to  show  cause  why  final  judgment  should  not  be  entered 
against  him ;  and  upon  such  scire  facias  being  duly  ex- 
ecuted and  returned,  if  the  garnishee  fails  to  appear, 
and  discover  on  oath,  the  court  confirms  the  judgment 
and  awards  execution  for  the  plaintiff's  whole  judgment 
and  costs.  In  a  case  under  this  practice,  the  garnishee, 
without  waiting  for  the  scire  facias  to  issue,  paid  to  the 
plaintiff  the  amount  of  the  judgment  nisi,  and  upon 
behig  afterwards  sued  by  the  indorsee  of  a  promissory 
note  he  had  given  to  the  attachment  defendant,  he 
pleaded  that  payment  in  bar.     It  appeared  that  the 


1  Prescott  r.  Hull,  17  Johnson,  284;  Nugent  v.  Opdyke,  9  Robinson  (La.) 
453;  Colvin  v.  Rich,  3  Porter,  175;  Foster  v.  White,  9  Ibid.  221 ;  Johns  v. 
Field,  5  Alabama,  484;  Crayton  r.  Clark,  11  Ibid.  787;  Stockton  v.  Hall, 
Hardin,  160. 

-  Nugent  1-.  Opdvke,  9  Robinson  (La.)  453. 

[  527  ] 


§  746  ATTACHMENT,    A    DEFENCE.  [ciI.  XXXVII. 

writ  in  the  action  on  the  note  was  served  on  the  maker 
of  the  note  prior  to  the  time  when  he  would  have  been 
required  by  the  scire  facias  —  if  one  had  been  issued  — 
to  appear  and  answer;  but  no  scire  facias  wrs  issued. 
The  court  held  that  the  suit  on  the  note,  in  favor  of 
the  indorsee,  was  a  notice  to  the  maker  that  his  note 
had  been  transferred  ;  and  that  fact  havinti;  been  broun-ht 
to  his  knowledge  before  he  could  have  answered  under 
the  scire  facias,  and  before  any  final  judgment  could 
have  been  rendered  against  him,  it  was  his  duty  to 
have  answered,  and  made  known  that  he  had  received 
notice  of  the  transfer  of  the  note  ;  and  not  having  done 
so,  he  could  not  avail  himself  of  his  payment  under  the 
judgment  nisi  as  a  bar  to  the  action  on  the  note.^ 

• 
§  745.  In  Mississippi,  the  courts  have  gone  further  in 
requiring  garnishees  to  sustain  the  rights  of  assignees 
than  in  any  other  State.  It  was  there  held  that  the 
garnishee,  even  after  execution  issued  against  him, 
upon  learning  that  the  debt  attached  in  his  hands  had 
been  assigned  previous  to  the  garnishment,  is  bound  to 
protect  himself  against  the  execution  by  a  bill  of  inter- 
pleader ;  and  that  if  he  fail  to  do  so,  and  satisfy  the 
judgment,  it  will  be  in  his  own  wrong,  and  constitute 
no  valid  defence  to  the  claim  of  the  assiecnee.^ 


o 


§  746.  In  connection  with  this  subject  it  may  be  men- 
tioned that  it  is  the  duty,  not  less  than  the  interest,  of 
an  assignee  of  a  chose  in  action,  to  put  it  in  the  power  of* 


^  Jo]ins  V.  Field,  5  Alabama,  484.    See  also,  Colvin  v.  Rich,  3  Porter,  175 ; 
Foster  v.  Wliite,  9  Porter,  221. 

-  Oldham  v.  Lcdbetter,  1  Howard  (Mi.)  43. 

[528] 


CH.  XXX VII.]  ATTACHMENT,    A   DEFENCE.  §  747 

the  maker,  to  disclose  its  assignment,  in  any  answer  he 
may  have  to  give  as  garnishee  of  the  assignor,  by  noti- 
fying him,  and  exhibiting  to  him  the  evidence  thereof, 
that  he  may  be  able  to  state  the  whole  matter  to  the 
court.  It  is  not  to  be  considered  that,  in  all  cases,  a 
failure  on  the  part  of  the  assignee  to  exhibit  to  the 
maker  such  evidence,  will  defeat  or  seriously  prejudice 
his  claim;  but  in  any  system  of  practice  where  the  gar- 
nishee's liability  turns  altogether  on  the  terms  of  his 
answer,  and  where  the  effect  given  to  a  statement  by 
him  of  an  assignment  of  the  chose  in  action,  in  respect  of 
which  it  is  sought  to  charge  him,  depends,  as  in  Mas- 
sachusetts, upon  the  evidence  which  the  answer  affords 
of  the  existence  and  legal  efficacy  of  such  assignment, 
it  is  indispensable  that  the  assignee  should  produce  to 
the  garnishee  such  evidence  of  his  title  as  will  justify 
the  garnishee  in  setting  out  the  assignment  as  an  exist- 
ing fact,  and  will  support  the  assignment  against  the 
attaching  creditor.^ 

§  747.  Therefore,  where  A.  gave  an  unnegotiable 
note  to  B.,  and  was  afterwards  summoned  as  garnishee 
of  B. ;  and  in  his  answer  disclosed  that  since  the  service 
of  the  writ,  C.  had  informed  him  that  the  note  was  his 
property,  and  that  B.  acted  as  his  agent  in  taking  it, 
but  exhibited  no  evidence  of  his  property  in  the  note ; 
and  A.  in  his  answer  did  not  state  his  belief  that  C.'s 
statement  was  true,  or  that  the  note  was  C.'s,  and  he 
was  thereupon  charged  as  garnishee,  and  satisfied  tlie 
judgment,  and  afterwards  was  sued  by  C.  on  the  debt ; 

'  Wood  r.  Partridge,  11  iMass.  488 ;  McAllister  v.  Brooks,  22  Maine,  80. 

.  ■  45  '   [529] 


§  749  ATTACIDIENT,   A   DEFENCE.  [CH.  XXXVII. 

it  was  held,  that  the  judgment  against  A.,  as  garnishee, 
was  a  good  defence  to  the  action ;  the  main  ground  as- 
sumed, being  that  C.  had  failed  to  exhibit  such  evidence 
of  his  title  as  would"  authorize  A.  to  express  his  belief 
in  its  existence  and  validity.^ 

§  748.  It  is  still  more  important  that  notice  of  the 
transfer  of  a  chose  in  action  should  be  given  to  the  maker, 
where,  as  in  some  States,  such  transfer  takes  effect,  as 
regards  the  maker,  only  from  the  time  of  such  notice ; 
for,  if  previous  to  notice  the  maker  be  subjected  to  gar- 
nishment as  a  debtor  of  the  payee,  and  compelled  to 
pay  the  amount  of  the  note,  the  assignee  cannot  after- 
wards maintain  an  action  against  him.  Thus,  in  Mas- 
sachusetts, in  a  suit  brought  there  by  the  indorsee 
against  the  maker  of  a  promissory  note,  given  in  Con- 
necticut, by  one  citizen  of  that  State  to  another,  and 
there  indorsed  to  a  citizen  of  Massachusetts,  which  note 
was  not  negotiable  by  the  law  of  Connecticut ;  it  was 
held  to  be  a  good  defence,  that  the  maker,  before  he 
had  notice  of  the  indorsement,  had  been  summoned  as 
garnishee  of  the  payee,  and  had  paid  the  amount  of  the 
note  on  an  execution  issued  against  him  as  garnishee.^ 

§  740.  In  pleading  a  recovery  against  the  maker  of 
a  note,  as  garnishee  of  the  payee,  it  is  not  necessary 
that  the  plea  should  aver,  in  totidem  verbis,  that  the  maker 
had  no  notice  of  the  transfer  of  the  note,  before  he  an- 


1  Wentworth  r.  TVeymouth,  11  Maine,  446. 
-  Warren  v.  Copelin,  4  Metcalf,  594. 

[530] 


CH.  XXXYII.]  ATTACmiENT,   A   DEFENCE.  §  7-j2 

swered  the  garnishment.     If  he  had  notice  the  plaintiff 
should  reply  the  fact  and  establish  it.^ 

§  750.  If  the  garnishment  of  the  maker  of  a  note, 
and  judgment  against  him,  and  satisfaction  of  the  judg- 
ment, before  be  has  notice  of  its  transfer,  would  be  held 
to  bar  the  right  of  the  holder  to  recover  against  the 
maker,  much^'more  will  his  right  be  barred  where  he 
takes  the  note  with  express  notice  of  the  pendency  of 
the  garnishment.^ 

§  751.  In  asmmpsit  the  recovery  and  execution  in 
the  attachment  may  be  given  in  evidence  under  the 
general  issue ;  but  in  debt  on  bond  it  must  be  pleaded. 
Care  must  be  taken  to  plead  it  properly,  for  if  the  de- 
fendant fail  for  want  of  a  proper  plea,  it  is  said  that  the 
party  must  pay  the  money  over  again,  and  has  no  rem- 
edy either  in  law  or  equity.^ 

§  752.  Neither  in  giving  an  attachment  in  evidence 
imder  the  general  issue,  nor  in  pleading  it,  is  the  de- 
fendant bound  to  prove  that  the  plaintiff  in  the  attach- 
ment had  a  sufficient  cause  of  action.  For  it  would 
oftentimes  defeat  the  whole  effect  of  the  attachment 
laws,  if  the  garnishee  should,  without  tlie  means  of 
proving  it,  be  held  to  such  proof*  This,  however,  is 
held  only  in  cases  where  the  attachment  is  laid  in  the 


1  :Mills  V.  Stewart,  12  Alabama,  90. 
-  Glanton  r.  Griggs,  5  Georgia,  424. 

8  Turbill's  Case,  1  Saunders,  67,  Note  ;  Coates  r.  Roberts,  4  Eawle,  100. 
AI-Daniel  v.  Hughes,  3  East,  367 ;  Morris  v.  Ludlam,  2  II.  Black.  362. 

[531] 


§  752  ATTACHMENT^    A    DEFENCE.  [cH.  XXXVII. 

hands  of  third  persons ;  not  wliero  the  party  attaches 
money  in  his  own  hands.  In  that  case,  \^hen  sued  for 
the  debt,  the  phaintift'  may  reply  that  he  was  not  in- 
debted to  the  defendant,. and  the  defendant  will  be 
held  to  prove  the  debt.^ 


*  Sergeant  on  Attachment,  2<l  Edition,  IGO  ;  Paraniore  v.  Pain,  Cro.  Eliz, 
598;  M'Daniel  v.  Hughes,  3  East,  30  7;  Morris  r.  Ludlani,  2  II.  Bhiek.  3G2. 

[  532  ] 


CHAPTER   XXXVIII. 

OP  ACTION   FOR   MALICIOUS   ATTACHMENT. 

§  753.  In  the  chapter  on  Attachment  Bonds,  we  con- 
sidered the  responsibility  of  an  attachment  plaintiff  to 
the  defendant,  for  an  attachment  which  was  merely 
wronnrful,  and  not  obtained  maliciously  and  without 
probable  cause.  We  now  proceed  to  an  examination 
of  the  course  of  the  defendant,  upon  common  law  prin- 
ciples, for  an  attachment  maliciously  sued  out. 

§  754.  It  has  been  uniformly  held  in  this  country 
that  an  attachment  plaintiff  may  be  subjected  to  dam- 
ages for  attaching  the  defendant's  property  maliciously 
and  without  probable  cause.  The  defendant's  remedy 
in  this  respect  is  not  at  all  interfered  with  by  the  plain- 
tiff's having,  at  the  institution  of  the  suit  given  a  bond, 
with  security,  conditioned  to  pay  all  damages  the  de- 
fendant may  sustain  l)y  reason  of  the  attachment  having 
been  wrongfully  obtained.^ 


»  Sanders  r.  Hughes,  2  Brevard,  495;  Donnell  i'.  Jones,  13  Alabama, 
490 ;  Smith  v*  Story,  4  Humphreys,  1G9  ;  Petit  r.  Mercer,  8  B.  Monroe,  51  ; 
Senccal  v.  Smith,  9  Robinson  (La.)  418, 

45===  [533] 


§  757  ACTION    FOR    MALICIOUS  ATTACHMENT.    [CH.  XXXVIII. 

§  755.  The  det'cndant's  action  is'  coTisidered  to  be 
governed  by  the  principles  of  the  coinnion  hiw  apphca- 
ble  to  actions  for  niahcions  prosecution.  Case,  there- 
fore, and  not  trespass  ri  d  armis,  is  the  proper  action 
for  enforcin-^^  this  liability.^  It  cannot  be  brought  until 
the  attachment  suit  shall  have  terminated  ;  l)ut  an 
omission  to  aver  in  the  declaration  its  termination  is 
cured  by  verdict." 

§  75G.  In  such  an  action  a  return  of  the  sherifl'  on 
the  attachment, '-y/o/  c.cccided  by  order  of  the  phditli/J';' 
does  not  disprove  the  fact  that  an  attachment  was  made. 
Though  given  in  evidence  by  the  plaintifi;  he  may  con- 
tradict it,  and  show  by  parol  proof  that  the  writ  was 
executed.'^ 

§  757.  The  earliest  adjudication  concerning  this  ac- 
tion in  this  country  which  we  have  met,  was  in  Vir- 
ginia, in  1803,  when  it  was  decided  that  no  action  could 
be  sustained,  unless  it, appeared  that  the  plaintifi;  in  at- 
taching the  defendant's  property,  acted  maliciously  and 
without  probable  cause ;  and  that  it  Avas  not  suOicient 
for  the  declaration  to  aver  that  the  attachment  was 
"without  any  Icrjid  or  justijiahie  cause;"  but  it  must 
allege  the  want  of  j)rohahle  cause.*  This  doctrine  has 
since  been  recognized  and  afiirmed  in  Massachusetts,'^ 


^  Shaver  v.  "White,  G  Muuford,  110. 

*  Kca  V.  Lewis,  Minor,  382. 

»  Mott  V.  Smith,  2  Cranch,  C.  C.  33. 

*  Young  V.  Gregorie,  3  Call,  446. 

*  Lindsay  v.  Larned,  17  Mass.  190;  Wills  v.  Noyes,  12  Pick.  324. 

[534] 


en.  XXXVIII.]    ACTION    FOR   MALICIOUS  ATTACHMENT.  §  7o9 

Connecticut/  New  Jersey,^  Pennsylvania,^^  Ohio/  Ten- 
nessee/ North  CaroUna/  and  Louisiana." 

§  758.  The  malice  necessary  to  support  this  action  is  \^ 
any  improper  motive.     It  need  not  imply  malignity,  ' 
nor  even  corruption,  in  the  appropriate  sense  of  those    ; 
terms.     That  which  is  done  contrary  to  one's  own  con-   1 
viction  of  duty,  or  with  a  wilful  disregard  of  the  rights    , 
of  others,  whether  it  he  to  compass  some  unlawful  end,  j 
or  some  lawful  end  by  unlawful  means,  or  to  do  a  wrong  , 
and  unlawful  act,  knowing  it  to  be  such,  constitutes  ' 
legal  malice.^     If,  for  instauce,  a  person  commence  an 
acUon  by  attaching  the  goods  of  the  defendant,  know- 
ing that  he  has  no  cause  of  action,  he  is  considered  to 
ha°ve  intended  to  vex,  harass,  and  injure  him;  and  this 
is  sufficient  evidence  of  malice.^     So,  though  he  have  a 
cause  of  action,  if  he  allege  as  a  ground  for  obtaining 
the  attachment,  that  which  he  knows  to  be  llilse,  it  is 
express  malice.^*^ 

§  759.  In  Massachusetts,  it  is  held  that  the  action 
cannot  be  sustained,  unless  the  evidence  be  satisfactory 
that  the  plaintiff'  hwir,  when  he  commenced  his  action 
by  attachment,  that  he  had  no  cause  of  action,  and  that 


>  Ives  r.  Bartliolomcw,  9  Conn.  309. 

»  Boon  r.  Maul,  IVnnington,  G31. 

»  M'CuUough  I'.  Grisbobber,  4  Watts  &  Sergeant,  201. 

*  Tomlinson  i-.  Warner,  9  Ohio,  103. 
»  Smith  V.  Stor}-,  4  Humphreys,  1C9. 

•  Williams  v.  Hunter,  3  Hawks,  545.  ^ 
^  Senccal  v.  Smith,  9  Robinson  (La.)  418. 

»  Wills  r.  Noyes,  12  Tifk.  324. 

»  Ives  r.  Bartholomew,  9  Conn.  309. 

J«  Tomlinson  r.  Warner,  9  Ohio,  103. 

00-j] 


§  701  ACTION   FOR   M.VLICIOUS  ATTACHMENT.    [cO.  XXXVIII. 

lie  acted  maliciously  in  that  behalf.  Therefore,  -svherc 
the  declaration  alleged  that  the  attachment  phiintiff 
knew  he  had  no  lawful  cause  of  action  against  the  de- 
fendant when  the  action  by  attachment  was  commenced, 
and  that  he  acted  mahciously  in  commencing  it  witliout 
any  just  cause,  and  also  in  attaching  and  detaining 
plaintifl^s  property ;  it  was  held,  that  the  declaration 
was  not  supported  by  evidence  that  he  had  attached 
the  property  under  a  belief  that  he  had  a  good  cause 
of  action,  and  then  maliciously  detained  it  after  he  had 
learned  that  the  suit  was  groundless.^ 

• 
§  TOO.  In  New  Jersey,  however,  it  was  held  that  in 
an  action  for  maliciously  suing  out  an  attachment  from 
a  court  having  no  jurisdiction  thereof,  it  is  not  neces- 
sary to  aver  in  the  declaration  that  the  attachment 
plain tifl'/"y/^7/^  that  the  court  had  no  jurisdiction;  for  he 
must  see  to  the  legality  of  his  proceedings.^ 

§  TOl.  The  doctrin.e  intimated  in  the  last-cited  case 
in  Massachusetts,  that  tlie  plaintilf's  hcUcf  of  his  having 
a  cause  of  action,  will  protect  him  from  an  action  for 
malicious  prosecution,  has  been  distinctly  recognized 
and  announced  in  other  States,  in  relation  to  the 
grounds  on  which  the  attachment  is  sued  out,  as  dis- 
tinct  from  the  question  of  the  existence  of  a  cause  of 
action.  In  North  Carolina,  it  was  decided  that  the 
plaintiff's  belief,  caused  by  the  defendant's  conduct,  that 
the  defendant,  as  alleged  in  the  affidavit,  had  absconded, 
was  sufficient  to  protect  the  plaintiff  from  this  action, 

1  Stone  V.  Swift,  4  Pick.  389.     ' 
^  Boon  I'.  Maul,  Pennington,  631. 

[536] 


en.  XXXVIII.]    ACTION   FOR   M.AXICIOUS  ATTACHMENT.  §  762 

altliougli  in  fact  the  defendant  had  not- absconded.^  So, 
in  Pennsylvania,  in  a  simiUxr  case,  it  was  held  that  the 
question  was  not  whether  the  attachment  defendant 
had  really  absconded,  but  whether  his  conduqt  was  such 
as  to  justify  the  plaintiff's  apprehensions,  and  to  make 
recourse  to  the  attachment  a  measure  of  reasonable  pre- 
caution.- So,  in  Tennessee,  where  the  plaintiiY  sued 
out  an  attachment  on  the  ground  that  the  defendant 
was  a  non-resident  of  the  State,  when  it  appeared  that 
though  he  had  been  two  years  absent  from  the  State, 
and  had  avowed  his  intention  to  remove,  yet  he  had 
not  in  fact  changed  his  doniicil ;  and  the  attachment 
was  dismissed ;  and  the  defendant  brought  his  action 
against  the  plaintiff  for  damages ;  it  was  held  that  a 
recovery  could  not  be  had  merely  on  the  ground  that 
the  attachment  had  been  obtained  when  it  ought  not 
to  have  been,  but  that  the  probable  cause  given  by  the 
defendant  must  be  taken  into  consideration  as  a  de- 
fence.' 

§  702.  In  Alabama,  where,  as  we  have  seen,^  actual 
damage  for  a  merely  wrongful  attachment  may  be  re- 
covered, when  no  malice  existed  or  is  averred,  the 
plaintiffs  belief  of  the  existence  of  a  cause  of  action,  or 
of  fiicts  authorizing  the  issue  of  an  attachment,  may  be 
given  in  evidence  to  repel  the  presumption  of  malice, 
and  thereby  prevent  the  recovery  of  exemplary  or  vin- 


*  Williams  i-.  Hunter,  3  Ilawks,  545. 

*  M-Cullough  V.  Grishobber,  4  Watts  &  Sergeant,  201. 
»  Smith  V.  Stoni-,  4  Humphreys,  1C9. 

*  Ante,  Ch.  VI. 

[  537  ] 


§  764  ACTION    FOR    MALICIOUS  ATTACHMENT,    [cil.  XXXVIII. 

dictive  damages.''-  And  so  in  Louisiana,  it  was  consid- 
ered that  if  it  was  apparent  that  the  plalntilV  in  the  at- 
tachment had  a  suiUcient  or  very  probable  cause  of 
action,  and  was  prevented  from  gaining  a  judgment  by 
some  technical  objection,  or  irregularity  in  the  proceed- 
ings, which  could  not  be  foreseen,  the  i^robability  and 
justice  of  the  demand  might  be  pleaded,  and  given  in 
evidence  in  mitigation  or  justification  of  a  claim  for  vin- 
dictive damages.^ 

§  7G3.  These  cases  are  equivalent  to  a  recognition 
of  the  common  law  principle  we  have  been  considering ; 
for  it  is  admitted  that  the  plaintiff's  belief,  on  proper 
grounds,  would  be  sufficient  to  protect  him  from  a  re- 
covery of  those  damages  which,  but  for  peculiar  stat- 
utes, would  be  autliorizcd  by  the  common  law,  and 
could  be  recovered  only  on  common  law  grounds. 

§  704.  In  the  cases  cited,  in  which  the  probable  cause 
for  the  attachment  is  inquired  into  as  a  bar  to  the  ac- 
tion, it  will  be  found  that  no  opportunity  existed  to 
investigate  and  determine  that  point  in  the  attachment 
suit.  Where,  as  in  some  States,  the  attachment  de- 
fendant may  preliminarily  controvert  and  disprove  the 
truth  of  the  affidavit  on  which  the  attachment  issued, 
that  point  could  not  properly  become  the  subject  of 
investigation  in  the  action  for  malicious  prosecution. 
For  if  the  truth  of  the  affidavit  was  tried  in  the  attach- 
ment suit,  and  determined  against  the  plaintiff  there. 


1  Donncll  v.  Jones,  13  Alabama,  490  ;  White  v.  Wylcy,  17  Ibid.  167. 
-  Cox't'.  Robinson,  2  Robinson  (La.)  313. 

[538] 


CH.  XXX VIII.]    ACTION   FOR   MALICIOUS  ATTACHMENT.  §  706 

the  matter  would  be  res  acljmUccda,  and  of  course  he 
could  not,  when  sued  by  the  defendant,  set  up  the  truth 
of  the  athdavit  as  a  defence.^  On  the  other  hand,  the 
attachment  defendant,  if  the  affidavit  should  have  been 
found  to  be  true,  would  be  equally  precluded,  in  the 
action  for  malicious  prosecution,  from  contesting  that 
point ;  or  if  he  failed  to  put  it  in  issue  in  the  attachment 
suit,  it  would  be  an  admission  of  the  allegation  in  the 
athdavit,  which  he  could  not  afterwards  retract  or  deny. 

§  76-5.  But  even  where  this  course  may  be  pursued, 
it  has  been  held  that  an  appearance  to  the  attachment, 
entering  special  bail,  and  confessing  judgment  for  only 
apart  of  the  sum  demanded,  is  not  a  waiver  of  the  in- 
jury; for,  said  the  court,  "the  defendant  had  no  alter- 
native but  to  enter  special  bail  or  see  his  property  sac- 
rificed for  what  was  in  tact  not  due.  An  appearance 
thus  extorted,  is  surely  not  an  admission  that  the  means 
employed  were  legal ;  and  a  creditor  cannot  compel  the 
payment,  even  of  a  just  debt,  by  illegal  means."  ^ 

§  706.  It  has  been  decided  in  Alabama,  that  the  at- 
tachment plaintiff,  when  sued  for  malicious  prosecution, 
is  not  confined  in  his  defence,  to  showing  that  the  facts 
on  which  he  sued  out  the  attachment  existed  and 
amounted  to  a  probable  cause ;  but  he  may  show  that 
other  causes  existed  for  which,  under  the  statute,  the 
attachment  might  have  issued.  For  instance,  where  the 
ground  on  which  the  attachment  was  obtained,  was,  that 
the   defendant  was  about  to  dispose  of  his  property 


'  Ilayden  r.  Sample,  10  Missouri,  215. 

*  Foster  v.  Sweenv,  14  Sergeant  &  Eawle,  386. 

[539] 


§  769  ACTION    FOR    MALICIOUS  ATTACHMENT.    [CU.  XXXVIII. 

fraudulently,  Avitli  intent  to  avoid  the  payment  of  the 
debt  sued  for ;  it  was  held,  in  the  action  for  malicious 
prosecution,  that  the  question  was,  not  whether  the  pre- 
cise ground  stated  in  the  allidavit  was  true,  but  whether 
the  attachment  was  wrongfully  or  vcxatiously  sued  out; 
and  that  it  was  a  complete  defence,  if  the  attachment 
plaintiff  could  show  that  any  one  of  the  causes  existed 
which  would  have  warranted  him  in  resorting  to  the 
process ;  for  instance,  that  the  defendant  was  about  to 
remove  his  property  out  of  the  State,  with  intent  to 
avoid  the  payment  of  the  debt  upon  which  the  attach- 
ment was  founded.^ 

§  7GT.  In  the  same  State  it  was  also  intimated  that 
it  might  be  shown  to  the  jury,  to  repel  the  presumption 
of  malice,  that  the  plaintilf  was  indebted  to  the  defend- 
ant in  another  State,  and  ran  away  from  there  with  his 
property  to  avoid  the  payment  of  his  debts/ 

§  7C8.  And  it  was  there  held  that  the  insolvency  of 
the  attachment  defendant,  though  constituting  no  bar 
to  an  action  brought  by  him  against  the  plaintiff  for 
maliciously  suing  out  the  attachment,  was  proper  to  be 
given  in  evidence,  as  a  circumstance  to  be  considered 
by  the  jury  in  ascertaining  the  damages  he  had  sus- 
tained by  his  credit  being  injured."^ 

§  769.  And  the  Supreme  Court  of  that  State  decided 
that  while  it  was  inadmissible  for  the  defendant  to  prove 


^  Kirksey  r.  Jonos,  7  Alabama,  C22. 

-  ]\Ielton  V.  Troutman,  15  Alabama,  535. 

*  Donnell  v.  Jones,  13  Alabama,  490. 

[540] 


en.  XXXVIII.]    ACTION    FOR   MALICIOUS  ATTACIDIENT.  §  769 

that,  when  he  sued  out  his  attachment,  there  was 
another  attachment  in  the  hands  of  the  sheriff  against 
the  same  party,  yet  he  might  prove  that  another  attach- 
ment had  been  issued,  and  notice  thereof  to  him,  pre- 
vious to  the  issuing  of  his  attachment,  as  tending  to  re- 
but the  presumption  of  mahce  in  hini.^ 


"Tarbrough  v.  Hudson,  19  Alabama,  653. 

46  [  541  ] 


CHAPTER   XXXIX. 

OF   FRAUDULENT  ATTACHMENTS. 

§  770.  The  existence  of  tlie  proceotlinp^  by  attach- 
ment could  Uanlly  fail  to  give  rise  to  fraudulent  attempts 
to  obtain  preference,  where  the  property  of  a  debtor  is 
insufficient  to  satisfy  all  the  attachments  issued  against 
him.  "When  it  transpires  that  there  are  circumstances 
justifying  resort  to  this  remedy,  the  creditors  of  an  in- 
dividual usually  press  forward  eagerly  in  the  race  for 
precedence,  sometimes  to  the  neglect  of  important  forms 
in  their  proceedings,  and  sometimes  without  due  regard 
to  the  rights  of  others,  equally,  or  perhaps  more,  inter- 
ested tlian  themselves.  On  such  occasions,  too,  notwith- 
standing the  safeguards  generally  thrown  around  the 
use  of  this  process,  and  in  violation  of  the  sanctity  of 
the  preliminary  oath,  it  has  been  found  that  men,  in 
collusion  with  the  debtor,  or  counting  on  his  aljsence 
for  impunity,  have  attempted  wrongfully  to  defeat  the 
claims  of  honest  creditors,  by  obtaining  priority  of  at- 
tachment, on  false  demands.  There  is,  therefore,  a 
necessity  —  apparent  to  the  most  superficial  observa- 
tion —  for  some  means  by  which  all  such  attempts  to 
overreach  and  defraud,  through  the  instrumentality  of 
legal  process,  may  be  summarily  met  and  defeated. 
Hence  provision  has  been  made  in  the  statutes  of  some 
States  for  this  exigency,  and  where  such  is  not  the  case 
[542] 


CH.  XXXIX.]  FRAUDULENT    ATTLVCIBIENTS.  §  TT2 

the  courts  have  broken  the  fetters  of  artificial  forms  and 
rules,  and  attacked  the  evil  with  commendable  spirit 
and  effect. 

§  771.  Whatever  irregularities  may  exist  in  the  pro- 
ceedings of  an  attaching  creditor,  it  is  a  well  settled  rule 
that  other  attaching  creditors  cannot  make  themselves 
parties  to  those  proceedings,  for  the  purpose  of  defeating 
them  on  that  account.^  But  where  an  attachment  is 
based  on  a  fraudulent  demand,  or  one  which  has  in  fact 
no  existence,  it  is  otherwise,  as  will  appear  from  a  re- 
view of  the  action  of  courts  of  a  high  order  of  learning 
and  ability. 

§  772.  In  New  Hampshire,  so  far  as  we  have  Ijecn 
enabled  to  discover,  there  is  no  statute  authorizing  an 
attaching  creditor  to  impeach  the  good  fiiith  of  previous 
attachments  laid  upon  the  same  property  he  has  at- 
tached ;  but  a  practice  prevails  there  which  effectually 
opens  the  door  for  such  salutary  investigations ;  as  is 
exhibited  by  the  following  case.  One  sued  out  an  attach- 
ment, and  caused  it  to  be  levied..  Afterwards,  creditors 
of  the  same  defendant,  who  had  subsequently  caused 
the  same  property  to  be  attached,  suggested  to  the 
court,  that  the  suit  of  the  prior  attacher  was  prosecuted 
with  collusion  between  him  and  the  defendant,  for  the 
purpose  of  defrauding  the  creditors  of  the  latter,  and 
that  there  was,  in  fact,  nothing  due  from  the  defendant 
to  the  plaintiff.     And  thereupon,  the  creditors  making 


1  Kincaid  v.  Neall,  3  M'Cord,  201 ;  Camberford  v.  HaU,  Ibid.  345  ;  :^^Bride 
r.  Floyd,  2  Bailey,  209 ;  Van  Arsdale  v.  Krum,  9  ^lissouri,  303 ;  "Walker  v. 
Robert;?,  4  Richardson,  5C1. 

[543] 


§  773  FRAUDULENT    ATTACnMEXTS.  [ciI.. XXXIX. 

the  suggestion,  having  given  security  to  tlie  plaintiff  to 
p.'iy  all  such  costs  as  the  court  should  award  on  account 
of  their  interference  in  the  suit,  the  court  ordered  that 
the  plaintiff  should  make  his  election  to  dissolve  his 
attachment,  or  consent  to  trv,  in  an  issue  between  him 
and  the  creditors,  the  question  whether  his  suit  and 
attachment  were  collusive.  The  plaintiff  then  elected 
the  latter,  and  an  issue  was  formed  for  the  purpose,  be- 
tween the  plaintiff  and  the  creditors,  and  tried  by  a  jury, 
who  found  that  the  suit  was  prosecuted  collusively,  for 
the  purpose  of  defrauding  creditors.  The  court  then 
ordered  all  further  proceedings  to  be  stayed ;  from  which 
order  the  plaintiff  ai)pealed  to  the  Superior  Court. 
That  court,  in  sustaining  the  appeal,  diflered  from  the 
court  below  only  as  to  the  manner  of  arriving  at  the  re- 
sult ;  and  held,  that  if  the  creditors  should  give  security 
to  pay  all  the  costs  which  the  plaintiff  might  recover, 
they  would  be  permitted  to  defend  in  the  name  of  the  dc- 
fcndani}  Afterwards  the  same  court  referred  to  this  as 
a  very  common  practice,  and  as  in  general  the  only 
mode  in  which  a  fraudulent  attachment  could  be  de- 
feated.^ 

§  773.  In  South  Carolina,  by  the  proceeding  in  at- 
tachment, the  funds  of  the  absent  debtor  are  brourjht 
into  court  and  distriljuted  amonii;  the  several  attachim? 
creditors,  and  a  judgment  in  attachment  serves  no  other 
purpose  than  to  ascertain  the  amount  of  the  plaintiff's 
claim  on  the  attached  property,  by  establishing  his  de- 
mand against  the  absent  debtor,  and  no  execution  can 


^  Buckman  r.  Buckman,  4  New  Ilamp.  319. 
^  Webster  v.  Harper,  7  Kew  Ilamp,  594. 

[544] 


CH.  XXXIX.]  FRAUDULENT   ATTACHMENTS.  §  775 

be  issued  on  the  judgment.  When  th^  attached  fund 
is  distributed,  the  judgment  is  functus  oficio,  unless  the 
defendant  shall  have  entered  special  bail,  or,  under  the 
act  of  1843,  executed  a  warrant  of  attorney  and  been 
admitted  to  defend  the  action,  on  the  conditions  pre- 
scribed by  the  Act.'^  There,  it  is  settled  that,  in  making 
the  distribution  of  the  moneys  arisinsi:  from  the  attach- 
ments,  the  court  can  and  should  inquire  into  the  seve- 
ral causes  of  action,  and  may  inspect  its  judgments  to 
prevent  fraud  and  injustice.  In  effecting  this,  the  con- 
sent or  opposition  of  the  parties  to  the  judgment  is  dis- 
regarded, for  they  may  combine  to  eflect  tlie  fraud. 
The  acquiescence  of  the  defendant  in  the  plaintiff's  ille- 
gal proceedings,  affords  no  protection  against  an  inquiry 
into  the  judgment,  when  that  is  necessary  for  the  pro- 
tection of  the  rights  of  other  creditors.  Therefore, 
where  an  attachment  appears  to  have  issued  on  a  debt 
not  due,  it  will  be  set  aside  in  favor  of  a  junior  attach- 
ment upon  a  debt  that  was  due.^ 

§  774.  The  Court  of  Appeals  of  Virginia,  have  taken 
the  same  salutary  course,  and  held  that  a  junior  at- 
taching creditor  may  come  in  and  defend  against  a  sen- 
ior attachment  of  the  efiects  of  their  common  debtor, 
by  showing  that  the  debt  for  which  the  senior  attach- 
ment was  taken  out  had  been  paid.'^ 

§  77").  In  Georgia,  this  subject  received  a  full  exam- 
ination, and  it  was  held,  upon  general  principles,  and 


^  "Walker  v.  Roberts,  4  Richardson,  561. 

»  Ibid. 

'  M'Cluny  r.  Jackson,  6  Grattan,  9G. 

46  =^  [  545  ] 


§  775  FRAUDULENT   ATTACHMENTS.  [ciI.  XXXIX. 

without  any  aid  from  statutory  provisions,  that  a  judg- 
ment in  an  attachment  suit  may  be  set  aside,  in  a  court 
of  law,  upon  an  issue  suggesting  fraud  and  w^ant  of  con- 
sideration in  it,  tendered  by  a  junior  attaching  creditor 
of  the  common  defendant.  The  case  arose  upon  a  mo- 
tion by  the  junior  judgment  creditor  to  set  aside  the 
senior  judgment,  for  alleged  want  of  consideration  or 
cause  of  action.  The  whole  facts  are  best  shown  in  the 
opinion  of  the  court,  delivered  by  Nisbet,  J. 

"  Upon  a  rule  against  the  sheriff  for  the  distribution 
of  money  raised  by  attachment,  the  plaintiff  in  error, 
holding  an  attachment  lien,  junior  to  that  of  the  de- 
fendants, sought  to  set  aside  their  lien.  The  attach- 
ment claim  of  both  parties  has  been  reduced  to  judg- 
ment. For  the  purpose  of  vacating  the  judgment  of 
the  defendants,  and  thereby  defeating  their  older  lien, 
the  plaintiff  in  error  tendered  to  them  in  the  court  be- 
low the  following  issues:  — 

1.  That  G.  &  B.  (the  defendants  in  error)  have  no 
judgment  against  II.,  (the  defendant  in  attachment,) 
good  and  sufficient  in  law ;  nor  did  G.  k  B.  have  at  the 
time  of  suing  out  their  attachment,  any  cause  of  action 
against  said  II.  as  alleged. 

2.  That  said  judgment  in  flivor  of  said  G.  «fe  B.,  had 
upon  said  attachment,  is,  and  was,  without  adequate 
consideration,  and  therefore  void  as  to  said  S.  (the 
plaintiff  in  error). 

3.  That  the  attachment  in  favor  of  G.  &  B.  was  sued 
out  on  a  note  made  by  one  M.,  and  not  by  the  defend- 
ant K,  and  that  said  judgment  on  said  attachment  was 
had  and  founded  on  said  note  made  by  said  M.,  and  that 
no  other  evidence  besides  said  note  was  produced  to  the 
jury  who  found  said  verdict  in  favor  of  G.  &  B.;  and 

[546] 


en.  XXXIX.]  FRAUDULENT   ATTACmiEXTS.  §  T75 

that  therefore  said  judgment  and  attachment  are  of 
none  effect  as  against  said  S. 

"  The  defendants  in  error  demurred  to  these  issues, 
and  the  court  sustained  the  demurrer ;  to  which  decis- 
ion the  plaintiff  in  error  excepts,  and  upon  it  assigns 
error.  The  questions  made  by  the  record  appear  to  be 
these,  to  wit :  "  is  it  competent  for  a  ijlaintiff  hi  ultachmcnt, 
holding  a  judgment  and  an  attachment  lien  fjoimrjer  than  the 
judgment  and  attachment  lien  of  another  plaintiff  in  attach- 
menty  against  the  same  defendant,  to  set  aside  the  older  lien 
and  judgment,  tipon  the  ground  of  tvant  of  consideration  for 
that  judgment,  or  upon  the  ground  of  fraud  in  the  judgment ; 
and  if  it  is,  can  it  he  done  hg  motion,  and  issue  tendered  at 
law  ? 

"  The  general  rule  as  to  the  effect  of  judgments  is, 
that  they  are  conclusive  upon  parties  and  privies.  Par- 
ties are  all  such  persons  as  were  directly  interested  in 
the  subject-matter,  had  a  right  to  make  defence,  to  ad- 
duce testimony,  to  cross-examine  witnesses,  to  control 
the  proceedings,  and  to  appeal  from  the  judgment. 
Privies  fre  all  persons  who  are  represented  by  the  par- 
ties and  claim  under  them,  all  who  are  in  privity  with 
the  parties;  the  term  privity  denoting  natural  or  suc- 
cessive relationship  to  the  same  rights  of  property.  All 
persons  not  parties  or  privies  are  regarded  as  strangers. 
Strangers  are  not  concluded  by  a  judgment.^ 

"  Without  going  further  into  the  general  doctrines 
upon  this  subject,  we  proceed  to  say,  that  the  plaintiff 
ill  error  was  not  a  parfy,  nor  a  privy,  to  the  judgment 
or  attachment  rendered  in  favor  of  G.  and  B.  against  H. 
He  had  no  power,  in  his  own  right,  to  make  a  defence 

^  Brown  f.  Chanev,  1  Georgia,  410,  and  the  authorities  there  cited. 

[  5iT  ] 


§  T7-J  FRAUDULENT   ATTACHMENTS.  [cil.  XXXIX. 

against  it,  to  adduce  testimony,  to  cxanline  witnesses,  to 
control  the  proceedings,  or  to  enter  an  appeal, 

"  The  plaintiff  in  error  being  a  stranger  then  to  this 
judgment,  it  is  scarcely  necessary  to  adduce  authorities 
to  demonstrate  his  right  to  set  it  aside,  if  prejudicial  to 
his  interest,  for  fraud.  Nor  is  it  any  the  more  question- 
able, that  he  may  set  it  aside  as  being  -wholly  wilhout 
consideration.  But  there  arc  some  authorities  which 
relate  more  particularly  to  attachments,  which  have  a 
direct  relevancy  to  this  case.  (The  court  then  review 
the  cases  on  this  subject  in  Massachusetts  and  Maine, 
and  proceed.) 

"  These  principles  and  these  authorities  establish  that 
this  attachment  may  be  vacated,  and  also  the  judgment 
which  is  founded  on  \{,  for  fraud — for  any  thing  that 
amounts  to  a  fraud  upon  the  rights  of  other  creditors, 
whether  the  defendant  be  a  party  to  the  fraud  or  not. 
It  was  sought  to  ])Q  done  in  this  case  by  an  issue  at  law, 
before  ajur}^  Can  it  be  so  done?  is  the  remaining  in- 
quiry. That  it  may  bo  done  by  a  proceeding  in  equity, 
by  a  creditor  whose  debt  is  not  reduced  to  iiWirment 
even,  I  presume  there  is  no  doubt.  It  may  be  conceded, 
for  it  has  been  so  ruled,  particularly  in  South  Carolina, 
that  a  creditor  whose  debt  fe  not  reduced  to  judgment, 
cannot,  upon  motion,  set  aside  a  judgment  in  attach- 
ment, for  irregularity.  In  this  case  the  debt  of  the  ob- 
jecting creditor  is  in  judgment;  he  also  has  alien  upon 
the  fund  in  the  hands  of  the  court  for  distribution. 
Nothing  is  more  common  in  our  courts,  upon  the  dis- 
tribution of  money,  than,  upon  the  suggestion  by  one 
holding  a  junior  lien  that  an  older  execution  has  been 
paid,  to  send  that  fact  to  be  tried  by  a  jury  at  law. 
"Why  may  not  a  suggestion  that  there  is  fraud  in  the 
[548] 


en.  XXXIX.]  FRAUDULENT    ATTACHMENTS.  §  ^76 

judgment,  be  tried  in  the  same  way?  It  is  not  enough 
to  say,  that  the  party  has  a  remedy  in  equity ;  for  over 
questions  of  fraud,  the  jurisdiction,  by  express  statute, 
and  indeed  by  the  general  law,  in  courts  of  law  and 
equity,  is  concurrent.  We  think  it  is  at  the  option  of 
the  party  to  move  at  law  or  go  into  equity.  If  he 
chooses  to  abide  the  rules  of  the  law,  the  risk  is  his ; 
the  court  has  no  right  to  turn  him  away.  In  South 
Carolina,  it  has  been  determined  that  a  judgment  will 
be  set  aside  at  the  instance  of  a  creditor,  upon  an  issue 
of  fraud  before  a  court  of  law."  ^ 

§  776.  These  cases,  proceeding  upon  principles  of 
strict  right  and  justice,  and  fulfdling  the  law's  aversion 
to  every  species  of  collusion  and  fraud,  it  is  to  be  hoped 
will  be  regarded  as  authority  in  all  otlier  courts,  and 
lead  to  the  general  adoption  of  a  practice  which  thus 
summarily  assails  an  evil  that  cannot  be  so  effectively 
reached  by  subsequent  resort  to  the  tedious  remedy  of 
a  suit  at  law.  This  recourse  is  undoubtedly  open  to 
the  creditor  injured  by  a  fraudulent  attachment,  either 
against  the  plaintifi'  therein,  or  the  oflicer  wh6  made  it, 
with  knowledge  of  its  fraudulent  character.  Thus, 
where  officer  A.,  on  Saturday  afternoon,  attached  goods 
in  a  store,  and  removed  part  of  them  to  another  build- 
ing, and  then  closed  and  locked  the  store,  and  took  the 
key  away ;  and  early  on  Monday  morning  oflicer  B. 
called  on  the  defendant  with  another  attachment,  and 
the  defendant  showed  him  the  goods,  and  B.  thereupon 
attached  them,  knowing  the  existence  of  xV.'s  attach- 

*  Smith  V.  Gettingcr,  3  Georgia,  140. 

[510] 


§  777  FRAUDULENT   ATTACHMENTS.  [cil.  XXXIX. 

mcnt ;  and  A.  sued  B.,  in  trover,  for  the  value  of  the 
goods ;  it  was  held  that  IJ.'s  attaching  the  goods  with 
the  defendant's  assistance  showed  collusion  to  defeat 
the  first  attachment,  and  that  fraud  was  a  necessary  in- 
ference from  the  facts,  and  that  the  action  was  main- 
tainable.^ 

§  777.  A.  &  B.,  separate  creditors  of  C,  sued  out  at- 
tachments against  him,  and  levied  them  on  his  property. 
Afterwards  D.  obtained  an  attachment  against  C,  and 
the  oflicer  returned  a  levy  on  the  same  property,  su))- 
ject  to  the  attachments  of  A.  c^  B.  At  a  subsequent 
time  A.  k  B.  were  desirous  that  the  property  should  be 
sold  on  their  writs,  but  D.  gave  written  notice  to  the 
ollicer  that  he  should  resist  the  demands  upon  which 
the  attachments  of  A,  c^  B.  were  founded,  as  being  fraud- 
ulent, and  that  he  should  oljject  to  the  sale  of  the  goods 
until  judgment  should  be  recovered  in  due  course  of 
law,  and  the  goods  be  sold  on  execution,  and  that  if  the 
officer  should  sell  the  goods  on  the  Avrits,  it  would  be  at 
his  peril.  The  officer,  notwithstanding,  sold  the  prop- 
erty, and"  when  A.  &  B.  obtained  judgments,  appropri- 
ated the  proceeds  to  the  satisllxction  thereof,  leaving 
nothing  to  satisfy  D.'s  claim ;  whereupon  D.  brought  an 
action  on  the  case  against  the  officer  for  failing  to  sat- 
isfy his  execution.  On  the  trial  it  appeared  that  in  the 
action  instituted  by  A.  there  were  two  demands,  one  of 
which  was  just,  the  other  without  any  consideration  and 
fraudulent.  It  was  held,  that  embracing  this  fraudulent 
demand  in  the  suit,  made  the  whole  action  void  as  to 

'  Deuuv  V.  "Warreu,  IG  Mass.  420. 

[550]  ' 


en.  XXXIX.]  FRAUDULENT   ATTACHMENTS.  §  780 

D.'s  right  as  an  attaching  creditor,  and  that  the  officer 
was  hable  to  D.^ 


§  778.  So,  an  action  on  the  case  for  conspiracy  lies 
in  favor  of  a  creditor,  against  his  debtor  and  a  third 
person,  who  have  procured  the  property  of  the  debtor 
to  be  attached  upon  a  suit  for  a  fictitious  debt,  and  ap- 
plied to  the  payment  of  the  judgment  obtained  in  the 
action,  in  order  to  prevent  creditors  from  obtaining 
payment  out  of  the  property,  the  creditor  having  sub- 
sequently attached  the  same  goods,  and  not  being  able 
to  procure  payment  of  his  debt  in  consequence  of  the 
prior  attachment,  and  the  debtor  being  insolvent." 

§  779.  According  to  the  course  of  decision  in  some  of 
the  New  England  States  there  are  other  cases  in  which 
attachments  will  be  held  to  be  dissolved  as  to  subse- 
quent attaching  creditors,  by  the  action  of  the  plaintiff. 
Kach  attacher  has  a  right  to  the  surplus  of  the  defend- 
ant's property  after  satisfying  the  previous  attachments; 
and  any  act  of  an  attaching  creditor  which  increases 
the  demand  upon  which  he  attached,  as  it  is,  in  effect,  a 
fraud  upon  the  subsequent  attachers,  is,  in  those  States, 
regarded  as  dissolving  his  attachment  as  to  them.  Thus, 
the  filing  of  a  new  count  to  the  declaration,  which 
does  not  appear  by  the  record  to  be  for  the  same  cause 
of  action  as  that  originally  sued  on,  will  produce  this 
result. 

§  780.    A  case  of  this  description  first  came  up  in 

»  Fair6cld  v.  Baldwin,  12  Pick.  388. 
*  Adams  v.  Paige,  7  Pick.  512. 

[ooll. 


§  781  FRAUDULENT   ATTACIDIENTS.  [CH.  XXXIX. 

Massachusetts,  upon  the  following  facts.  The  first  at- 
tacher's  writ  contained  two  counts,  the  first,  upon  a 
promissory  note  for  §171.82,  the  second  for  $2,000, 
money  had  and  received.  While  the  action  was  pend- 
ing, the  plaintiff  added  three  counts;  the  first  for  $322, 
the  balance  of  an  account  annexed,  in  which  the 
charges  were  principally  for  labor,  articles  sold  and  de- 
livered, and  money  paid ;  the  second  on  a  promissory 
note  for  $96;  and  the  third  on  a  promissory  note  for 
$500.  Upon  this  state  of  facts  a  controversy  arose  be- 
tween this  plaintiff  and  a  subsequent  attacher,  each 
claiming  the  proceeds  of  the  property  attached.  The 
court  declare  the  first  attachment  dissolved,  and  use 
the  following  language :  "  We  think  that  after  an  at- 
tachment, or  holding  to  bail,  the  plaintiff  cannot  alter 
his  wunt  to  the  injury  of  a  subsequent  attaching  cred- 
itor, or  of  bail.  The  subsequently  attaching  creditor 
has  a  vested  right  to  the  excess  beyond  the  amount  of 
the  judgment  to  be  rendered  upon  the  writ  of  the  first 
attaching  creditor  as  it  w^as  w^hen  served.  So,  bail  are 
not  to  be  made  liable  for  a  greater  sum  than  was  in- 
cluded in  the  writ  at  the  time  when  they  entered  into 
the  bail-bond.  It  is  said  that  the  second  count  w^ould 
cover  the  additional  counts;  but  it  cannot  be  ascer- 
tained from  the  record  that  it  was  intended  to  cover 
them."  1 

§  781.  The  same  court  held  the  same  views  in  a  sub- 
sequent case,  where  the  declaration  contained  a  count 
for  money  had  and  received,  and  a  count  for  goods  sold 
and  delivered ;  and  the  plaintiff,  in  the  progress  of  the 

1  Willis  V.  Crooker,  1  Pick.  204. 

[552] 


CH.  XXXIX.]  FRAUDULEXT    ATTACHMEXTS.  ^  "t^^ 

suit,  under  a  leave  to  amend,  filed  nine  new  counts,  on 
notes,  checks,  and  for  money  lent,  etc.  The  court  there 
say :  '•'  The  claim  or  cause  of  action  for  the  security  of 
which  a  creditor  obtains  his  lien  by  attachment,  should 
be  clearly  indicated  in  the  writ  and  declaration.  The 
declaration  should  set  forth  clearly  the  cause  or  causes 
of  action  to  be  secured  by  the  attachment.  And  it 
would  be  a  manifest  injustice  to  a  subsequently  attach- 
ing creditor,  to  permit  the  prior  attacher  to  amend  by 
the  introduction  of  claims  which  were  not  originally  set 
forth  and  relied  upon  in  the  declaration ;  for  he  has  a 
vested  interest  in  the  surplus.  The  rights  of  the  attach- 
ing creditors  should  be  ascertained  as  they  existed  and 
were  disclosed  by  the  writ  and  declaration,  at  the  time 
when  they  made  their  attachments.  If  it  were  other- 
wise, the  attachment  law  might  be  made  a  most  power- 
ful engine  of  fraud,  that  would  work  up  the  whole  of 
the  debtor's  property  for  the  use  of  the  first  attacher, 
who  should  think  proper  to  enlarge  his  claims  suffi- 
ciently to  embrace  it."  ^ 

§  782.  So,  where  a  defendant  in  an  attachment  suf- 
fered default,  and  the  plaintifi'  took  judgment  for  the 
whole  claim  in  suit,  without  deducting  therefrom  the 
amount  of  certain  articles  received  by  him  from  the 
defendant  in  part  payment  of  the  claim ;  it  was  held, 
tliat  his  attachment  was  thereby  vacated  as  to  subse- 
quent attaching  creditors.^ 

§  783.   And  in  Maine,  where  the  parties,  during  the 


^  Fairfield  v.  Baldwin.  12  Tick.  388. 
»  Peirce  r.  Tartridge,  3  Metcalf,  44. 

47  [553] 


§  785  FRAUDULENT   ATTACHMENTS.  [cil.  XXXIX. 

pendency  of  a  suit  by  attacliment,  made  a  settlement  of 
all  their  accounts,  by  which  a  balance  was  found  due  to 
the  plaintiff,  for  which  judgment  was  entered  in  his 
favor  by  consent;  and'  the  settlement  included  some 
demands  for  which  the  writ  contained  no  proper  counts, 
and  some  which  were  not  payable  till  after  the  action 
was  commenced ;  it  was  held  that  the  attachment  was 
dissolved  in  ioto,  so  far  as  the  rights  of  subsec^uent  attach- 
ing creditors  were  concerned.^ 

§  784.  A  very  strong  case  was  where,  by  a  slip  of 
the  pen,  in  making  out  the  writ,  the  command  to  the 
officer  was  to  attach  to  the  value  of  six  dollars  only, 
while  the  cause  of  action  set  forth,  and  the  judgment 
afterwards  recovered  were  for  more  than  four  hundred 
dollars.  AVith  the  consent  of  the  defendant,  the  writ 
was  amended  by  inserting  the  word  hundred  after  the 
word  six  ;  and  yet  it  was  decided  that  a  subsequent  at- 
tacher  w^as  not  affected  by  the  amendment,  and  that 
he  might  maintain  his  action  against  the  officer  for  ap- 
plying the  attached  property  in  full  satisfaction  of  the 
previous  attachment ;  there  not  being  sufficient  to  sat- 
isfy both.^ 

§  785.  But  where  an  attorney,  inadvertently,  and 
without  the  knowledge  of  his  client,  took  a  judgment 
and  obtained  execution  for  a  sum  known  by  his  client 
to  be  more  than  was  really  due  him,  and  on  discovering 
his  mistake,  w^ent  to  the  officer  holding  the  execution, 
and  stated  the  sum  that  was  actually  due  the  plaintiff. 


^  Clark  i\  Foxcroft,  7  Maine,  348;  Fairbanks  v.  Stanley,  18  Ibid.  20G. 
■  Putnam  r.  Hall,  3  Pick.  445.     See  Danielson  v.  Andrews,  1  Ibid.  156. 

[  S54  ] 


CH.  XXXIX.]  FRAUDULENT   ATTACHMENTS.  §  '^SG 

and  that  he  had  come  to  give  instructions  relative  to 
the  service  of  the  execution ;  it  was  held  that  as  there 
was  no  fraudident  intent,  but  a  mere  mistake,  the  at- 
tachment was  not  thereby  dissolved.^  And  so  a  mere 
amendment  of  the  declaration,  by  which  the  amount  to 
be  recovered  is  not  increased,  and  no  new  cause  of  ac- 
tion is  introduced,  w^ill  not  vacate  an  attachment.  If, 
for  example,  there  are  money  counts  only  in  the  declar- 
ation, which  refer  to  a  bill  of  particulars  annexed,  con- 
taining a  description  of  bills  of  exchange,  notes,  etc., 
which  are  to  be  offered  in  evidence;  counts  subse- 
quently added,  technically  describing  those  bills,  notes, 
etc.,  would  not  be  considered  as  new  causes  of  action, 
but  as  entirely  consistent  with  the  intent  of  the  plain- 
tiff, as  originally  manifested  in  his  writ  and  declaration. 
K,  however,  such  an  intent  cannot  be  inferred  from  the 
writ  and  declaration,  the  new  counts  will  be  considered 
to  be  for  other,  and  not  for  the  original  causes  set  forth.^ 

§  786.  But  where  a  declaration  contains  the  money 
counts,  how  is  it  to  be  determined  what  demands  were 
put  in  suit,  and  what  were  afterwards  introduced?  The 
rule  seems  to  be,  that  those  which  the  plaintiff  owned 
when  the  suit  was  brought,  and  which  were  due  and 
payable,  and  liable  to  be  introduced  without  amend- 
ments, and  which  were  so  introduced,  and  judgment 
obtained  upon  them,  cannot  in  the  absence  of  contra- 
dictory proof,  be  regarded  as  not  in  suit :  e.  g.  none  of 
the  cases  decide  that  an  attachment  would  be  dissolved 


^Felton  r.  Wadsworth,  7  Gushing,  587.     See  in  the  opinion  of  the  court 
he  remarks  upon  the  cases  of  Fairfield  v.  Baldwin,  and  Peirce  v.  Partridge. 
*  Fairfield  v.  Baldwin,  12  Pick.  388 ;  Miller  v.  Clark,  8  Ibid.  412. 

[555] 


§  788  FRAUDULENT   ATTACHMENTS.  [ciI.  XXXLX. 

by  proving  a  promissory  note  under  a  money  count 
originally  contained  in  the  declaration.^ 

§  787.  Though,  as  before  stated,  a  mere  amendment 
of  a  declaration,  by  which  the  amount  to  be  recovered 
is  not  increased,  and  no  new  cause  of  action  is  intro- 
duced, will  not  dissolve  an  attachment,  yet  it  has  been 
held  in  Massachusetts  that  the  introduction  of  new  de- 
fendants into  the  writ  after  the  levy  of  it,  will  have  that 
effect.  Thus,  where  partnership  property  was  attached 
upon  a  writ  containing  the  names  of  three  only  out  of 
four  surviving  partners,  and  the  next  day  the  name  of 
the  fourth  was  inserted,  and  a  new  attachment  made 
upon  the  same  property ;  but  in  the  mean  time  another 
creditor  had  attached  the  property,  upon  a  writ  against 
the  four  partners,  it  was  decided  that  the  first  attach- 
ment was  vacated  as  against  the  second  attaching  cred- 
itor.^ 

§  788.  Another  act  of  a  plaintiff  by  which,  as  to  sub- 
sequent attachers,  it  is  said  his  attachment  will  be  dis- 
solved, is  the  referring  of  the  action,  and  all  demands 
hehvecn  the  'plaintiff  and  defendant,  to  arbitration,  unless  it 
be  shown  that  the  reference  covered  only  the  demands 
sued  upon.  The  Supreme  Court  of  Maine  carried  the 
principle  a  stej)  further,  and  held  that  it  makes  no  dif- 
ference whether  any  new  demand  is  introduced  beyond 
the  original  cause  of  action ;  or  if  any  such  is  intro- 
duced, whether  it  is  allowed  or  not.  The  mere  act  of 
referring,  where  the  rule  of  reference  is  carried  into 

^  Fairbanks  v.  Stanley,  18  Maine,  296. 
2  Denny  v.  Ward,  3  Pick.  199. 

[556] 


CH.  XXXIX.]  FRAUDULEXT   ATTACHMENTS.  §  TOO 

effect,  is  considered  to  dissolve  the  attachment ;  on  the 
principle  that  for  the  sake  of  a  general  settlement  with 
his  adversary,  or  for  any  other  reason  satisfactory  to 
himself,  the  plaintiff  consents  to  waive  and  does  waive 
the  security  he  holds  in  virtue  of  his  attachment.  And 
the  court  say,  —  "  unless  such  a  principle  should  be  ad- 
hered to,  a  plaintiff's  demand  might  be  essentially  in- 
creased by  the  introduction  of  new  causes  of  action,  and 
in  this  manner  a  second  attaching  creditor  might  lose 
the  benefit  of  his  attachment,  and  though  with  no  im- 
moral motive  on  the  part  of  the  plaintilf,  such  second 
creditor  would  be,  in  legal  contemplation,  defrauded  of 
his  rights."  ^ 


o 


§  789.  The  better  rule,  however,  seems  to  be  that 
adopted  in  Massachusetts,  where,  though  it  was  at  first 
held  that  the  mere  fact  of  entering  into  such  a  refer- 
ence dissolves  the  attachment,^  in  a  subsequent  case 
that  decision  was  limited,  and  it  was  determined  that  if, 
in  such  case,  it  be  .shown  that  no  new  demand  was  ad- 
mitted by  the  referees,  the  attachment  would  not  be 
dissolved.'^ 

§  790.  Fraudulent  attachments  will  also  be  over- 
turned, when  brought  in  conflict  with  the  rights  of 
third  persons,  other  than  attaching  creditors.  Thus, 
where  A.,  being  desirous  of  purchasing  certain  mort- 
gaged land,  paid  the  mortgagee  the  value  of  his  inter- 


^  Clark  V.  Foxcroft,  7  !Maine,  348.     And  see  Mooney  r.  Kavanaugh,  4 
Ibid.  277. 

-  mil  V.  Hunnewell,  1  Pick.  192. 
'  Seeley  r.  Brown,  14  Pick.  177. 

47=:-^  [557] 


§  791  FRAUDULENT   ATTACHMENTS.  [CH.  XXXIX. 

est  therein,  and  the  mortgagee  reconveyed  to  the  mort- 
gager to  enable  hhn  to  give  a  deed  of  the  whole  estate 
to  A.,  but^immediately  afterwards,  and  before  the  deed 
to  A.  was  executed,  attached  the  land  in  a  suit  against 
the  mortgager,  the  attachment  was  declared  fraudulent 
and  void  as  against  A.^ 

§  791.  A  case  involving  similar  principles,  came  up 
in  Vermont,  under  a  petition  to  foreclose  a  mortgage. 
A.  and  B.  were  creditors  of  C,  who  had  eno-ao-ed  to  give 

A.  security  for  his  debt  by  a  mortgage  on  lands.  On  a 
certain  day,  finding  himself  in  failing  circumstances,  C. 
applied  to  B.,  and  stated  to  him  his  pledge  to  A.,  and 
requested  B.  to  prepare  a  note  and  a  mortgage  to  A.  to 
secure  the  payment  of  the  note ;  at  the  same  time  dis- 
closing to  B.  his  situation,  and  pointing  out  to  him 
property  to  a  large  amount,  which  he  requested  B.  to 
attach  for  his  own  security.  To  this  arrangement  B. 
made  no  objection,  and  C.  executed  the  note  and  mort- 
gage and  took  them  away,  and  the  mortgage  was  lodged 
for  record  early  the  next  morning.     In  the  mean  time, 

B.  sued  out  attachments  against  C,  and  attached  the 
premises  embraced  in  the  mortgage,  together  with  the 
other  property  designated  by  C.  The  controversy  was 
between  A.,  claiming  the  property  under  the  mortgage, 
and  B.,  claiming  it  under  the  attachment.  It  was  held 
that  the  attempt  by  B.  to  defeat  the  arrangement  he 
had  previously  acquiesced  in,  was  inconsistent  with 
good  faith,  and  surreptitious,  and  that  the  mortgage 
should  be  preferred  to  the  attachment.^ 


^  Spear  v.  Hubbard,  4  Pick.  143. 

^  Temple  v.  Hooker,  6  Vermont,  240. 

[558] 


CH.  XXXIX.]  FRAUDULENT   ATTACHMENTS.  §  793 

§  792.  In  New  Hampshire,  a  similar  case  arose  on 
this  state  of  facts.  A.  had  mortgaged  certain  real  es- 
tate, apparently  for  its  full  value.  B.  and  C.  being 
both  creditors  of  A.,  B.  informs  C.  that  he  proposes 
to  procure  an  arrangement  by  which  that  mortgage 
shall  be  removed,  and  one  taken  to  himself,  and  C. 
advises  him  to  effect  the  arrangement,  which  is  at 
once  proceeded  wdth.  Before  the  necessary  writings 
are  prepared,  and  while  they  are  in  progress,  C.  causes 
an  attachment  to  be  made  of  the  land,  which  does  not 
become  known  to  B.  and  the  other  parties  until  their 
agreement  was  completed  and  the  deeds  recorded.  B. 
then  filed  his  bill  in  equity,  setting  forth  the  facts,  and 
praying  that  C.  might  be  enjoined  against  claiming  any 
thing  in  the  land,  contrary  to  the  title  of  the  plaintiff 
under  the  mortgage,  and  that  the  attachment  might  be 
postponed  to  the  mortgage.  The  court  considering  the 
attachment  under  such  circumstances  to  operate  as  a 
direct  fraud  upon  B.,  granted  the  decree  according  to 
the  prayer  of  the  bill.^ 

§  793.  So,  where  a  conveyance  had  been  made  of 
certain  lands,  on  the  7th  of  May,  and  before  it  could  be 
properly  recorded,  one  attached  the  lands,  to  secure  a 
note  signed  by  the  grantors  on  the  8th  of  May,  the  day 
following  the  execution  of  the  conveyance,  and  payable 
in  thirty  days,  but  which  was  antedated,  as  of  the  3d 
of  April  preceding,  being  the  time  when  the  goods 
which  formed  the  consideration  of  it  had  been  sold,  on 
a  credit  of  six  months ;  it  was  held  that  the  antedatina; 


^  Buswell  I'.  Davis,  10  Xew  Hamp.  413. 

[559] 


§  793  FRAUDULENT   ATTACHMENTS.  [cil.  XXXIX. 

the  note,  and  creating  a  present  debt,  on  which  the 
attachment  of  the  hinds  was  made,  was  a  fraud  on  the 
grantees,  and  did  not  disturb  their  rights  under  the 
conveyance,  whatever  might  be  the  vahdity  of  the  pro- 
ceedings as  between  the  parties.^ 


'  Brjggs  V.  French,  2  Sumner,  251. 

[5C0] 


INDEX. 


INDEX. 


[the  referexces  are  to  the  sections.] 

A. 

ABSCONDING  DEBTOR. 

•who  is  to  be  considered, '-      '^ 

ABSENT  DEBTOR. 

who  is  to  be  considered, ^'      '^ 

ADMINISTRATOR. 

not  liable,  as  such,  to  attachment, ^^ — l*^! 

nor  to  garnishment, ^^'^     ***^ 

AFFIDAA'IT. 

for  obtaining  attachment, 102 — 118 

must  not  state,  in  the  disjunctive,  two  grounds  of  attachment,  108,  109 

surplusage  does  not  vitiate, 112 

substantial  compliance  with  statute  sufficient,         .         .         •  .113 

two,  of  the  same  import,  -will  not  invalidate  the  attachment,  .         114 

need  not  be  made  at  the  time  of  issuing  the  writ,  .     UG 

■want  of,  or  defect  in,  how  taken  advantage  of,          .         •  117,  118 

ALABAMA. 

statutory  provisions  of,  concerning  attachments,     .        .         •        .12 

AMENDMENT. 

of  attachment  bond, 144—146 

of  return  of  attachment, 202 — 215 

of  answer  of  garnishee, 6G7 


564 


INDEX. 


ANSWER   OF   GARNISHEE. 

what  he  may  bu  re(juin.'(l  to  state,  and  may,  ex  mero  motu, 

state  in, 645—657 

•yvliat  he  may  not  be  reqiured  to  state,  ....     G58 C66 

amendment  of, C67 

effect  to  be  ^'iven  to, CCS— G71 

construction  of,  ••......         C72 C75 

judgment  on, C76 

ARKANSAS. 

statutory  provisions  of,  concerning  attachments,        ...  13 

ASSIGNEE   IN   BANKlirPTCY. 

cannot,  as  such,  be  garnished, 491,  492 

ATTACHMENT. 

statutory  provisions  concemin{», 12 — 45 

cause  of  action  for  wliith  it  may  is.'uo,    .....       46 — 65 
against  absent,  absconding,  concealed,  and  non-resident  debt- 
ors,       66—86 

against  debtors  removing  or  fraudulently  disposing  of  their 

property, 87 — 92 

against  foreign  corporations, 93 — 97 

does  not  lie  against  heirs,  executors,  administrators,  or  other 

ii'prcscntative  persons,  as  such, 98 — 101 

aflidavit  for  obtaining, 102 — 118 

bond  for  obtiiining, 119 — 178 

execution  and  return  of,  ......         179 — 217 

effect  and  office  of, 218 — 226 

justifies  an  officer  in  attaching,  .......  180 

effect  of,  dates  from  time  of  service, 218 

levy  of,  does  not  change  defendant's  estate  orvest  any  prop- 
erty in  plaintiff,  .         .         .         .         .         .         .         .       219 

nor  confer  any  higher  rights  than  defendant  had  at  time  of 

service, 220 

does  not  affect  subsequently  acquired  interests,         .         .         .  220 

nor  divest  antecedent  liens, 220 

is  a  lien  from  time  of  service, 221 — 223 

takes  precedence  of  a  junior  execution,       .         .         .   •     .         .       224 

first  served,  entitled  to  priority, 225 

of  real  estate, 227 — 235 

of  personal  property, 236 — 257 

simultaneous  and  successive, 258 — 268 

imj)rovidently  issued, 3G5 — 380 


INDEX. 


565 


dissolution  of,    .         • 

when  a  defence,  and  how  [jlcaded, 

malicious,  action  for, 

fraudulent,  rules  concerning, 

ATTACHMENT    BOND. 

effect  of  failure  to  give  it, 

if  required  to  be  in  a  stated  penalty,  a  covenant  AviU  not  an- 
swer,  

must  be  actually  executed  before  the  writ  issues,    . 

if  executed  afterward,  it  is  fatal 

must  follow  the  form  prescribed  by  statute, 
addition  of  terms  not  ref^uircd,  will  not  vitiate, 
parties  to,       ••••••'         * 

amount  of,  ..••••■ 

defects  in,  defendant  only  can  take  advantage  of,  . 
should  be  taken  advantage  of  in  limine,      . 

amendment  of, 

errors  and  defects  in,  do  not  discharge  the  obligors, 
when  given  unnecessarily,  good  as  a  common  law  bond, 
its  obirgation  extends  to  the  final  result  of  the  suit,    . 
action  on,  and  damages  recoverable  under,    . 

ATTORNEY    AT    LAW. 

may  be  charged  as  garnishee, 


381—400 
719—752 
753 — 7G9 
770—793 


120 


133- 
13G- 


114- 


150- 


121 
124 
126 
130 
132 
135 
141 
142 
143 
14G 
14  7 
148 
149 
178 


49G 


B. 

BAIUIENT    OF    ATTACHED    PROrERTY. 

nature  and  terms  of, 

bailee  is  the  servant  or  agent  of  the  officer, 

does  not  destroy  the  lien  of  the  attachment,  ... 

otTicer  mav  retake  the  property  from  the  bailee, 

but  this  right  usually  depends  on  the  officer's  responsibility  to 

the  plaintiff, ' 

property  bailed  may  be  attached  again  by  the  same  officer,    . 

but  not  bv  another, •     '     ,      i 

unless  th#  bailee  suffer  the  property  to  go  back  into  the  de- 
fendant's possession,  or  abandon  it,     .         •         •         • 
liability  of  the  officer  for  the  fidelity  and  pecuniarj-  ability  of 

the  bailee, 

his  liability  to  the  defendant  for  bailed  property, 

ri'dits  and  duties  of  the  bailee, 

48 


315- 

-317 

320 

322, 

323 

324 

325 

32G 

327 

332- 
338- 


330 

-335 

33G 

-340 


5G6  INDEX. 

remedies  of  the  ofTicer  for  disturbance  of  his  possession  of 

bailed  property,     .             .             .             .             ,             .  341 

his  remedies  against  the  bailee,      .....  3-12 

has  no  right  of  action  against  the  bailee,  until  the  property  is 

demanded  of  him,       .....           343,  344 

■when  demand  on  the  bailee  is  unneccssar}',     .             .             ,  343 

need  not  be  personal,         ......  345 

demand  uj)on  one  of  several  bailees  is  sufficient,          .             .  346 

form  of  action  against  bailee,          .....  348 

conversion  by  bailee,    ......  348 

defences  by  bailee,  .....  349 — 3C0 

measure  of  officer's  recovery  against  bailee,    .  .  .  3G1 — 3G3 

judgment  against   bailee  is  discharged  l)y  payment  of  that 

against  defendant,      ......  3C4 

BANK  NOTES. 

may  be  attached,  .  .  .  .  .  .  237 

BOND  FOR  DISSOLVING  ATTACHMENT. 

effect  of  on  the  action,  .....  290 — 293 
in  suit  on,  plaintiff  need  not  aver  the  facts  necessar^'  to  au- 
thorize the  attachment  to  issue,  ....  294 
releases  the  property  from  attachment,  .  .  .  295 
is  available  only  to  the  plaintitf,  .....  296 
obligation  of,  not  discharged  by  surrender  of  the  property,     .  297 

BOND  FOR  OBTAINING  ATTACHMENT,       .  .         119—178 

{See  Attachment  Bonds.) 

BOND  FOR  RELEASING  ATTACHED  TROrE^Y,       .  299—314 
(6Ve  FuUTiico.MiNG  Bond.) 

C. 

CALIFORNIA. 

statutory  provisions  of,  concerning  attachments,   .  .  .14 

CAUSE  OF  ACTION  FOR  AVIIICH  ATTACHMENT  LIES. 

by  custom  of  London,  must  be  for  a  debt,       .  .      •  .  46 

not  for  a  tort,  .  .  .  .  .  ,  .47 

need  not  fall  -within  the  technical  definition  of  a  debt,  .       49 — 56 
must  arise  on  contract,       .....  49 — 56 

debt  must  not  be  merely  possible  or  contingent,  .  .  57 

not  for  unliquidated  damages  arising  ex  contractu,  .  61 — 64 


INDEX.  ^^'^ 

CONCEALMENT.  _     . 

bv  a  debtor,  a  ground  of  attachment 77      <  9 

CONNECTICUT. 

statutory  provisions  of,  concerning  attachments 15 

CORrORATIONS. 

may  be  sued  by  attachment, 

COSTS.  ^.g 

liability  of  garnishee  for, 

CUSTODY  OF  ATTACHED  PROPERTY. 

O  7() 

must  be  continued, 

care  and  diligence  of  ofiicer  in  relation  to,       .         .         •         .  271,  2r2 

what  will  excuse   officer  for  not  having  attached  property 

274 
forthcoming  on  execution, 

■what  will  not  excuse  him, •         •    27a— 2 

officer  cannot  escape  liability  by  impeaching  plaintiff's  judg- 

...         283 
ment,  ,..•••• 

demand  on  officer,  necessary  to  make  him  liable  for  attached 

•     284 
,      property, 

Tvhen  attachment  is  dissolved,  officer  to  restore  the  property 

to  defendant, '         " 

defendant  has  no  right  of  action  against  officer  for  not  keep- 
ing property  safely  till  the  attachment  is  dissolved,         •         •     28G 

rule  of" damages'  against  officer  for  failure  to  keep  attached 

°  288 

property, ^ 

expenses  of  keeping  attached  property, 28  J 

'"  D. 

DELAWARE. 


statutory  provisions  of,  concerning  attachments, 


16 


DELIVERY  BOND, 299-314 

(See  Forthcoming  Bond.) 

DISBURSl>iG  OFFICERS. 

cannot  be  garnished,  as  such, ' 

DISSOLUTION  OF  ATTACHMENT. 

discharges  the  lien  of  the  attachment,  .         .         •         •         •         •       -JO 
but  if  the  judgment  of  dissolution  is  reversed,  the  plaintiff 


568 


INDEX. 


may  reoovcr  tlie  proceerls  of  the  attached  property  from 
another  attaclier  who  has  received  them,        ....     382 
final  judjfment  for  defendant  dissolves  attachment,    .         .         .         383 
what  defects  in  plaintiif's  proceedings  will  do  so,   .         .         .     384,  385 
motion  to  dissolve  is  addressed  to  the  discretion  of  the  court, 
which  will  not  be  controlled  by  mandamus,  or  revised  on 

error, 386 

■when  dissolution  takes  place  by  act  or  negligence  of  the  at- 
taching olllcer, 388— 3D1 

when  by  the  act  or  negligence  of  his  servants,    .         .         .       392 — 394 

when  by  the  death  of  the  defendant, 395—398 

when  by  the  defendant's  bankruptcy,  ....         399,  400 

E. 

EFFECT  OF  AX  ATTACHMENT. 

dates  from  time  of  artual  service, 218 

does  not  change  defendant's  estate,  nor  confer  property  on 

plaintiff,         .         .         .         . 219 

confers  no  higher  rights  than  defendant  had  at  the  date  of  ser- 
vice,    220 

does  not  affect  his  subsequently  acquired  interests,        .         .         .  220 

nor  divest  antecedent  liens, 220 

is  a  lien  from  time  of  service,  ......  221 223 

EQUITABLE  ASSIGNMENT. 

of  i)roperty,  will  prevail  over  an  attachment  against  the  as- 

^'t'"0''. 510—514 

so  of  a  debt, 610— 024 

EXECUTION  OF  ATTACHMENT. 

ollicer  should  see  that  writ  is  in  legal  form,        .         .         .         .  1 79 

■when  it  will  justify  him  in  attaching, 180 

omission  to  attach,  how  justified, 181 

when  indemnity  may  be  reciuired  from  plaintiff,    ....  182 

unnecessary  delay  in  executing,  to  be  avoided,  .         .         .         183  184 
officer  should  act  conformably  to  law  and  so  as  not  to  wrong 

the  defendant, 185,186 

must  not  seize  goods  not  liable  to  attachment,    ....  187 

his  duty  in  case  of  intermixture  of  goods,        ....  188 190 

may  enter  store  of  third  person  to  seize  goods,  but  not  force 

a  dwelling-house,        .         .         .         .         .         .         .         .  191 

excessive  levy  does  not  make  him  a  trespasser,     ....  192 

must  not  do  any  act,  at  the  time  of  the  levy,  which  would 

amount  to  an  abandonment, I93 


INDEX.  569 

EXECUTOR. 

cannot  be  sued,  as  such,  by  attachment,  ....     98 — 101 

nor  subjected,  as  such,  to  garnishment,  ....        471 — 474 


FAILURE    OF    CONSIDERATION. 

may  be  pleaded  by  garnishee  against  his  liability  to  defendant,  C98 

FLORIDA. 

statutory  provisions  of,  concerning  attachments,  .  .  17 

FORTHCOMING   BOND. 

no  set  form  of  words  neccssan-  to  make,  ....  300 

ditfers  from  bailment  of  attached  property,      .  .  .  302 

object  of,    .  .  .  .  •  •  •  •  303 

property  bonded  cannot  be  again  attached,     .  .  .  303 

demand  under,  rules  concerning,  ....  305 

obligors  cannot  set  up  as  a  defence  that  the  property  was  not 

delendant's,  or  deny  the  admissions  of  tlie  bond,               .  312 
obligors  discharged,  if  prevented  by  act  of  God  from  deliver- 
ing the  property,        ......  314 

FRAUDULENT    ATTACHMENT. 

rules  concerning,  ....  770     793 

FRAUDULENT   DISPOSITION    OF   FROrERTY. 

■when  a  "round  of  attachment,  ....         91,92 


G. 

GARNISHEE. 

derivation  of  the  term,  .....  411 

his  liability  to  the  plaintiff  is  limited  by  his  liability  to  the  de- 
fendant,    .....••  414 
is  not  to  be  prejudiced  by  the  attachment,             .             •             .41.5 
general  basis  of  his  liability,     ....             .416—422 
can  be  made  liable  in  respect  of  property  of  the  defendant  in 
his  hands,  only  when  the  property  is  personal,  and  might 
be  seized  and  sold  under  execution,               .             •             .425 
cannot  be  made  liable  for  choses  in  action,      .            .             •  425 — 435 
the  character  of  his  possession  of  pei^onal  property  which  will 

make  him  liable,         .....  43G— 459 

48* 


570  INDEX. 

his  liabilit)',  as  afTeoted  by  the  capacity  in  which  he  holds  the 

fk'feiidant's  property,         .....  4C0 — 497 

as  allccted  by  previous  contracts  touching  the   deicndant's 

proi)crty  in  his  liands,  .....         498 — 504 

as  aflcLted  by  a  previous  assignment  of  the  dcfeiiihint's  prop- 
erty in  iiis  liands,  or  by  its  being  subject  to  a  lien,  mort- 
gage, or  pledge,    ......  505 — 521 

his  liability  as  a  debtor  of  the  defendant  must  be  based  on  a 

debt  from  him  to  defendant,  ....  524 

anil  not   upon   debts  from  others  to  defendant,  of  which   the 

evidences  are  in  his  possession,  ....       524 

and  must  be  for  a  legal  debt,  as  distinguished  from  an  ecjuita- 

ble  demand,  ......  525 

and  cannot  be  for  unliquidated  damages,  ....       526 

and  must  be  payable  in  money,  ....  527 

but  need  not  be  due  at  time  of  garnishment,         .  .  .       550 

his  liability,  as  ad'ccted  by  his  having  co-debtors,  and  by  the 
number  of  the  defendants,  and  the  number  of  his  cred- 
itors, .......  552 — 5G5 

his  liability  as  a  party  to  a  promissory  note,  .  .  507^599 

his  liability,  as  afiected  by  preexisting  contracts  with  the  de- 
fendant or  third  persons,        ....  COO — G05 

as  affected  by  a  fraudulent  attempt  by  the  defendant  to  de- 
feat the  payment  of  his  debts,  .  .  .  COG — C09 
as  affected  by  an  equitable  assignment  of  the  debt,     .             .  CIO — G24 
as  affected  by  the  commencement,  pendency,  and  completion 

of  legal  proceedings  against  him,  by  the  defendant,         .  C25 — C43 
answer  of,  ......  C44 — G76 

liability  of,  as  to  amount,  and  as  to  the  time  to  which  the  gar- 
nishment relates,  ......  C77 — C95 

his  right  of  defence  against  his  liability  to  the  defendant,  C9C — 712 

his   i-ight  to   take   advantage   of  defects  in    the   proceedings 

against  the  defendant,  and  to  plead  in  defendant's  name,  713 — 718 

GARNISHMENT. 

general  views  concerning,  ....  410,411 

is  a  legal,  not  an  ecpiitable  proceeding,  .  .  .  413 


H. 

HEIRS.' 

not  liable,  as  such,  to  be  sued  by  attachment,  98 — 101 


IXDEX.  571 


I. 

ILLINOIS. 

statutory  provisions  of,  concerning  attachments,  .  .  .19 

BirROVIDENT   ATTACHMENTS. 

what  are,  and  how  defeated,    .  .  .  •  •  3G5 — 380 

INDIANA. 

statutory  provisions  of,  concerning  attachments,    .  .  .20 

INTEREST. 

Hability  of  garnishee  for,  .....  679 — C90 

IOWA. 

statutory  provisions  of,  concerning  attachments,  .  .  .21 


JOINT    DEBTORS. 

one  of,  may  be  garnisheil,  and  subjected  to  a  judgment  for 

the  whole  of  their  debt  to  defendant,  .  .  .       552 

JUDGMENT. 

on  answer  of  garnishee,  .  •  .  •  •  676 

JUDGMENT    DEBTOR. 

concerning  garnishment  of,  .....         638 — 643 

JUSTICE    OF   THE   PE.\CE. 

cannot  be  charged  as  garnishee,  in  respect  of  money  in  his 

hands  as  such,        ......  490 

K. 

KENTUCKY. 

statutory  provisions  of,  concerning  attachments,  .  .  .22 


LIEN. 

service  of  attachment  constitutes  a,  .  .  221 — 226,233 

LDIITATION. 

statute  of,  may  be  pleaded  by  garnishee  against  his  liability  to 

defendant,       .  .  694 


572 


INDEX. 


LOUISIANA. 

statutory  provisions  of,  concerning  attachments,     .  .  .23 

•       ]\I. 

MAINE. 

statutory  provisions  of,  concerning  attachments,  .  .  24 

MALICIOUS    ATTACHMENT. 

liability  of  pluintiQ'  for,         .....       753 — 769 

MARYLAND. 

statutory  provisions  of,  concerning  attachments,  .  .  25 

MASSACHUSETTS. 

statutory  provisions  of,  concerning  attachments,     .  .  .26 

MICHIGAN. 

statutory  provisions  of,  concerning  attachments,  .  .  27 

IMINESOTA. 

statutory  provisions  of,  concerning  attachments,     .  .  .43 

MISSISSIPPL 

statutory  provisions  of,  concerning  attachments,  .  .  28 

MISSOURL 

statutory  provisions  of,  concerning  attachments,     .  .  .29 

MONEY. 

may  be  attached  in  specie,  .  .  .  .  .237 

MORTGAGE. 

of  property  in  garnishee's  hands  prevents  its  being  attached,      519,  520 

MORTGAGEE. 

of  real  estate,  has  no  attachable  interest  therein,     .  .         229,230 

MOTION   TO    DISSOLVE    ATTACHMENT. 

is  addressed  to  the  discretion  of  the  court,  which  will  not  be 

controlled  by  mandamus,  or  revised  on  error,        .  .  386 

is  based  only  on  defects  apparent  on  the  face  of  the  proceed- 
ing's,     ........     £84 


INDEX. 

MUNICIPAL   CORPORATION. 

cannot  be  charged  as  garnishee  in  respect  of  money  due  to  its 
ollicer,  •••'"' 

N. 

NEW   HAMPSHIRE. 

statutory  provisions  of,  concerning  attachments, 

NEW   JERSEY. 

statutory  provisions  of,  concerning  attachments,     . 

NEW   MEXICO. 

statutory  provisions  of,  concerning  attachments, 

NEW   YORK. 

statutory  provisions  of,  concerning  attachments,     . 

NON-RESIDENCE. 

what  is,  as  a  ground  of  attachment, 

NORTH   CAROLINA. 

statutory  provisions  of,  concerning  attachments,     . 

NOTICE   BY   PULLICATION. 

rules  concerning,  •  •  •  •  ' 

O. 

OHIO. 

statutory  provisions  of,  concerning  attachments. 


PARTNERSHIP  CREDITS. 

cannot  be  attached  for  a  debt  of  one  partner, 

PENNSYLVANIA. 

statutory  provisions  of,  concerning  attachments, 

PERSON.VL  PROPERTY. 

what  may  be  attached, 

rcc^uisites  of  a  valid  attachment  of 


573 


497 


30 


31 


44 


32 


80—86 


33 


401—408 


34 


558—561 


35 


237—247 

248—257 


57-4 


INDEX. 


PLEDGE. 

of  property  in  garnishee's  hands,  prevents  its  being  attached,  520 


PROMISSORY  NOTE. 

liability  of  party  to,  as  garnishee, 

PUBLICATION. 

as  to  absent  defendants, 

PUBLIC  OFFICER. 

is  not,  as  such,  subject  to  garnishment. 


567— 59D 


401 — 409 


4G1 — 4G4 


R. 

REAL  ESTATE. 

attachment  of,  .....  . 

REMOVAL  OF  PROPERTY. 

what  is,  as  a  ground  of  attachment, 

REPLEVY  BOND. 

(See  Forthcoming  Bond.) 

REPRESENTATIVE  PE RSONS. 

not  liable  to  be  sued  by  attachment, 

RETURN  OF  ATTACHMENT. 

is  generally  conclusive  against  the  officer, 

but  not  when  it  states  matter  of  opinion  only, 

should  state  that  tlie  property  was  the  defendant's, 

should  give  schedule  of  the  property  attached,     • 

but  not  a  valuation,  unless  the  law  require  it, 

is  evidence  in  officer's  favor,  .... 

will  not  be  set  aside  on  representation,  by  a  party,  of  its  in- 
correctness, ...... 

amendment  of,  when  and  how  made, 

not  to  affect  rights  of  third  persons  previously  acquired. 


227—235 


80—86 


98—101 


194 

195 

196,  197 

.  198 
199 

.       200 

201 

202—215 

216,  217 


S. 

SET-OFF. 

may  be  pleaded  by  garnishee  against  his  liability  to  defendant,  703 — 712 

SHERIFF. 

cannot  be  charged  as  garnishee  in  respect  of  money  in  his 


INDEX.  575 

hands  virlute  officii,  ....  477 — 486 

nor  in  respect  of  an  execution  in  his  hands,  .  .  .    487 

but  may  be,  on  account  of  a  surplus  in  his  hands  from  sale  of 

property,     .  .  .  .  .  .  .488 

SIMULTANEOUS  AND  SUCCESSIVE  ATTACHMENTS. 

rules  concerning,       ......      258 — 2G8 

SOUTH  CAROLINA. 

statutory  provisions  of,  concerning  attachments,      "       .  .  37 


TENNESSEE. 

statutory  provisions  of,  concerning  attachments,     .  .  .38 

TEXAS. 

statutory  provisions  of,  concerning  attachments,  .  .  39 

TRUSTEES. 

not  liable,  as  such,  to  be  sued  by  attachment,  .  .         98 — 101 

TRUSTEES  OF  INSOLVENTS. 

cannot  be  charged  as  garnishees  in  respect  of  moneys  in  their 

hands  officially,       .  .  .  .  .  .491 

U. 

UTAH. 

statutory  provisions  of,  concerning  attachments,     .  .  .45 

V. 

VERMONT. 

statutory  provisions  of,  concerning  attachments,  .  .  40 

VIRGINIA. 

statutory  provisions  of,  concerning  attachments,     .  .41 

W. 

WISCONSIN. 

statutory  provisions  of,  concerning  attachments,  .  .  42 


ERRATA. 

Page    89,  in  the  title  of  the  chapter,  —  "  removed  "  should  be  "  removing." 
109,  line    7  — insert  "  against  "  before  "  an  v." 
1 85,    "      5  from  the  bottom  —  "  the  "  should  be  "  these." 
202,    "      8  —  insert  "  it  "  after  "  completed." 
206,  last  line  —  strike  out  "  and." 
215,  line  10  —  "came"  should  be  "come." 
227,    "      6  —  insert  "  and  "  after  "  logs." 
269,    "      8  from  the  bottom  — strike  out  "by." 
282,    "      8  —  instead  of  "a  period"  at  "conclusive,"  there  should  be  a 

semicolon. 
287,    "    10  —  "  in  "  should  be  "  an." 
310,"      4  from  bottom  —  insert  "  and  "  after  "  parties." 
339,    "      9  —  insert  "  of"  after  "  executor." 
424,    "      9  from  l>ottom  —  "  formally  "  should  be  "  formerly." 
523,    "      6  —  "  course  "  should  be  "  recourse." 


TT^rr,^  ^^^  LIBRARY 
UWnnERSITY  OF  CALIFORNIA 
LOS  ANGELES 


AA    000  802  138 


